February 12, 2014

Employment e-Brief – Unison’s Judicial Review on Tribunal Fees

Last Friday (7 Feb 14) saw the outcome of Unison’s Judicial Review on Tribunal Fees. In short – Unison lost, but here is the detail for those who are interested.

BACKGROUND

In July 2013, the Employment Tribunals and Employment Appeal Tribunal Fees Order was introduced meaning that workers in the UK are now charged a fee to bring a claim to the employment tribunal, an additional fee if the claim is heard and another charge if they want to appeal the decision.

In October last year, Unison was granted a judicial review hearing in the High Court, in which it sought to argue that the imposition of the fees was “unfair” and would lead to a drastic shift in favour of the employer as employees were put off from bringing their claims because of a lack of funds.  Their claim was backed by the Equality and Human Rights Commission.

Unison argued that the number of employment cases being presented to the employment tribunal following the introduction of fees had fallen sharply.  They presented research suggesting Equality Act discrimination claims had fallen by 88% between September 2012 and September 2013, sex discrimination claims by 86% and unfair dismissal claims by 81%.

The evidence presented by Unison was largely based on how the Fees Order would affect a group of hypothetical claimants who, Unison claimed, would be deterred from asserting their right to bring a claim to the employment tribunal as a result of the fee imposition.

Unison made 4 challenges to the lawfulness of the Order and the High Court responded to each of these in the judgment:

CHALLENGE 1 – ACCESS TO JUSTICE

The requirement that an employee must pay fees in order to gain access to the employment tribunal and employment appeal tribunal violates individual rights conferred by EU law in that it will make it virtually impossible, or excessively difficult, to exercise those rights.

Judgment:  The High Court found that the fees regime provided ‘sufficient opportunity even for families on very modest means’ and that ‘proceedings will be expensive but not to the extent that bringing claims will be virtually impossible or excessively difficult’.  An employee’s right to access to justice had not, therefore, been diminished by the imposition of the fees.

CHALLENGE 2 – PRINCIPLE OF EQUIVALENCE

It is a breach of the principle of equivalence to require significant fees to be paid to vindicate EU rights where no fees are required to vindicate similar rights derived from domestic law. Unison were arguing that fees are not payable in most claims brought to the First Tier Tribunal, a similar tribunal at the equivalent level in the judicial hierarchy to the Employment Tribunal.

Judgment:  The High Court looked at whether the new fees regime was comparable with non-employment tribunal claims.  They took into account the fact that free early claim conciliation would be available for employment tribunal matters through Acas from 6 April 2014 and that it was expected that successful employment tribunal Claimants would be able to recover their fees, and found that the principal of equivalence was not breached.

CHALLENGE 3 – PUBLIC SECTOR EQUALITY DUTY

An assessment should have been made of the potential adverse effect of introducing fees in terms of the numbers and proportions of claims brought by individuals with protected characteristics which would previously have been brought and will now not be pursued.  For example, women typically earn less than men and there is no fee remission system in place to counteract that.

Judgment: The High Court noted that if the introduction of fees has a ‘damaging effect on the fundamental obligation of the Lord Chancellor and government, to eliminate, so far as possible, discrimination against those with relevant protected characteristics and advance equality of opportunity, then the Lord Chancellor will have to take such steps as are necessary by adjusting the regime’.  But that overall, the Public Sector Equality Duty was not breached.

CHALLENGE 4 – INDIRECT DISCRIMINATION

Following on from above, the effect of the 2013 Order is indirectly discriminatory and unlawful.

Judgment:  The Court found that there was insufficient evidence to demonstrate an adverse impact on individuals with protected characteristics but noted that “the Lord Chancellor has himself undertaken to keep the issue of the impact of this regime under review. If it turns out that over the ensuing months the fees regime as introduced is having a disparate effect on those falling within a protected class, the Lord Chancellor would be under a duty to take remedial measures to remove that disparate effect and cannot deny that obligation on the basis that challenges come too late. It seems to us more satisfactory to wait and see and hold the Lord Chancellor to account should his optimism as to the fairness of this regime prove unfounded.”

CONCLUSION

While employers can remain optimistic for the time being that weak and unmeritorious claims being brought against them by employees will remain low, the High Court did find that there may be some scope in the future for the fees regime to be reconsidered once the actual impact has become apparent.

For more information please contact a member of the Employment Law Team.