High Court judges who have been urged to quash an "unlawful" order which imposed fees for the first time on workers wanting to bring tribunal proceedings against their employers announce their decision today.
Lord Justice Moses and Mr Justice Irwin will rule on judicial review action brought by the union Unison over what it describes as "punitive" fees, which it says are "unfair and should be dropped".
Under changes introduced last July workers in the UK are now charged a fee to bring a claim, a fee if the claim is heard and a further charge if they want to appeal against a decision.
Unison's QC Karon Monaghan told the judges at a hearing in London last year that its case was that the order under challenge - the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 - was "indirectly discriminatory and unlawful" and "ought to be quashed".
She said the order introduced a requirement "for the first time" that fees be paid - "subject to remission" - in order to bring tribunal proceedings.
The effect of the order was that any claim in the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) "may only be instituted and continued to hearing upon payment of fees, subject only to an individual applying for, and then qualifying for, a remission..."
Ms Monaghan said Lord Chancellor Chris Grayling, who contested the action, "relies on the remission arrangements which he contends 'should negate or substantially reduce the impact on the claimants with limited financial means, by wholly exempting or providing them with discounts on a sliding scale'".
But she argued: "The remission arrangements are not adequate for this purpose."
She told the court that the introduction of fees constituted a "very significant departure from the scheme in place, in broadly its present form, for some 40 years or thereabouts".
Depending on the type of case it will cost £160 or £250 to lodge a claim, with a further charge of either £230 or £950 if it goes ahead to a hearing. Discrimination and unfair dismissal cases fall into the higher category of fees.
In the EAT the fees are £400 to lodge an appeal and £1,200 for a full hearing.
Ms Monaghan pointed to what she described as the "very severe and likely impact on potential claimants in discrimination claims", submitting that the requirement to pay higher fees in such claims "is not justified".
The Government says the aim of introducing fees "is to transfer some of the approximate £74 million cost of running the employment tribunals and the Employment Appeal Tribunal from the taxpayer to those who use the system".
Susan Chan, representing the Lord Chancellor, told the judges that the objective behind the introduction of fees was to "transfer a proportion of the costs of funding the employment tribunals and Employment Appeal Tribunal to users that can afford it".
She said in written submissions before the court: "It is also believed that the introduction of fees can contribute to improving the effectiveness and efficiency of the current scheme by encouraging employers and employees to resolve workplace disputes as early as possible, rather than litigate with the consequent emotional, financial and time demands that this places on all parties. Litigation should not be regarded as a 'first' resort.
"This goes hand in hand with the Government's emphasis on encouraging and indeed, making mandatory, conciliation and Alternative Dispute Resolution (ADR) in future."
She argued that Unison's grounds "fail to establish any public law error" and invited the court to dismiss the claim.
HM Courts and Tribunals Service has said it would refund people if the bid to abolish the charges succeeded.