Unison has lost its case in the High Court for judicial review of the introduction of fees for claimants wanting to bring employment tribunal proceedings.
On 29 July 2013 the Employment Tribunals and Employment Appeal Tribunal Fees Order came into effect which introduced fees for claimants wanting to bring tribunal proceedings. Unison sought judicial review of this arguing that the order was unlawful on the following grounds:
1. The requirement to pay fees violates the principle of ‘effectiveness’ as it makes it ‘virtually impossible or excessively difficult’ for individuals to exercise rights conferred by EU law
The court held that the principle of effectiveness applied and considered the impact of the fees on a number of hypothetical claimants. However, although the Court admitted that the introduction of fees would cause difficulty for some, they concluded that the fees were not so high that prospective claimants will not be able to pay them. They said that it would be better to wait and see and gather evidence to establish whether Unison’s fears were well founded. They said that if the evidence shows that the number of claims falls dramatically then the system may need to be changed.
2. The requirement to pay fees breaches the principle of equivalence as it means that the procedures adopted for the enforcement of rights derived from EU law are less favourable than those governing similar domestic law
The court held that the appropriate comparator case would be a contract claim for £20,000 brought in the county court and as such the level of fees to issue this type of claim would be the same as in the tribunal. They also said that it was relevant that there will soon be a free alternative dispute resolution service which is not available in the County Court and the Lord Chancellor is to issue guidance which states that the general position will be that successful claimants can recover fees from their employer. For these reasons they found that the principle of equivalence was not breached.
3. In introducing the fees the Lord Chancellor acted in breach of the Public Sector Equality Duty because he did not have regard to the need to eliminate discrimination, advance equality of opportunity and advance relations between those who share protected characteristics and those who do not
The court held that it could not be said that the Lord Chancellor didn’t consider the impact on these things just because he dismissed the concerns. They concluded that there had been consultation over the level of fees and the remission system could offset any adverse impacts arising from fees.
4. The effect of the introduction of fees is indirectly discriminatory and unlawful
The court accepted that the requirement to pay higher fees for type B claims could disadvantage a substantially higher proportion of groups such as women, ethnic minorities and disabled people. However the court could not determine the exact of the disadvantage as, at the present time, there was insufficient evidence to show the impact. To reach a conclusion on objective justification they said they need to weigh the extent of the disparate impact which they could not do yet. The court advised to wait and see what the impact was and then in the future there may be a duty on the Lord Chancellor to take remedial measures if the evidence shows that Unison’s concerns are well founded.
This leaves some scope to challenge the introduction of fees and the level of fees on grounds 1 and 4 in the future. However, this issue is not over for now, Unison has announced that they are going to appeal to the Court of Appeal.