Daniel Barnett: Was the imposition of fees for Claimants to bring Employment Tribunal proceedings unlawful? No, holds the High Court in The Queen on the Application of Unison v Lord Chancellor (Moses LJ and Irwin J), turning down the Union’s judicial review application against the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (the ‘2013 Order’). However, there is some scope for the fees regime to be reconsidered as its impact becomes apparent.
There were four challenges to the lawfulness of the 2013 Order.
(1) The requirement to pay fees as a condition of access to the Employment Tribunal and Employment Appeal Tribunal violates the principle of effectiveness since it will make it virtually impossible, excessively difficult, to exercise rights conferred by EU law;
(2) The requirement violates the principle of equivalence since the requirement to pay fees or fees at the levels prescribed means that the procedures adopted for the enforcement of rights derived from EU law are less favourable than those governing similar domestic actions;
(3) That in reaching the decision to introduce the new fees regime and in making the 2013 Order the defendant acted in breach of the Public Sector Equality Duty, and
(4) That the effect of the 2013 Order is indirectly discriminatory and unlawful.
All challenges were dismissed:
(1) Having considered the impact of the fees regime on various hypothetical Claimants with a range of income and capital at their disposal, the High Court held (para. 40) that the fees regime provided ‘…sufficient opportunity even for families on very modest means…’ and noted that ‘…Proceedings will be expensive but not to the extent that bringing claims will be virtually impossible or excessively difficult…’
The Court noted that a hearing fee might be due before exchange of statements, and said that it expected that a ‘full exchange of information’ would be encouraged by a Tribunal before a hearing fee is due (para. 27), which might help Claimants assess the likelihood of success.
(2) In respect of the equivalence issue, the High Court considered whether the fees regime was comparable to non-Employment Tribunal claims, including a Human Rights claim in the County Court. The Court noted that the cost regimes were different and that free ‘early claim’ conciliation with ACAS would be available for ET claims (from April 6th 2014), and that it is expected that successful ET Claimants will recover their fees, and held that the principal of equivalence was not breached.
(3) The Public Sector Equality Duty was not breached, there had been consultation over the level of fees and the fee remission scheme could offset adverse impacts arising from fees. The Court noted that the Public Sector Equality Duty is a continuing one (para. 69) and if the introduction of fees has a ‘…damaging effect on the fundamental obligation of the Lord Chancellor and government, to eliminate, so far as humanly 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…’.
(4) The Indirect Discrimination challenge focused on the impact of the higher fees for Type B claims (Equal Pay) than Type A claims, and a disparate impact on the group affected (i.e. women). The Court felt that a Judicial Review was not the appropriate way to resolve evidential issues over adverse impacts but was prepared to accept as a general proposition that women earn less than men, and so went on to consider the objective justification for Type B fees, and found itself unable to reach a conclusion (para. 88). The Court decided, noting the duty under the Equality Act on the Lord Chancellor, to wait and see and to ‘…hold the Lord Chancellor to account should his optimism as to the fairness of this (fee) regime prove unfounded…’ (para. 89).
The door may be open to future challenges, if not to the fees in principle, then the level of fees and of Type B fees in particular. Meanwhile, Unison has issued a press release announcing it intends to appeal to the Court of Appeal.