Unison’s application for Judicial Review regarding Tribunal Fees is dismissed by the High Court

14 Feb

Background

As readers will be aware, the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 made on 28 July 2013 came into force on 29 July 2013.  Following such, claims in the ET and appeals to the EAT may only be started and continued upon payment of fees  unless an individual applies and qualifies for a remission. 

Concerned about the impact of the same, Unison issued judicial review proceedings on 28 June 2013 then issued an application for urgent interim relief.  Permission to apply was originally refused on 23 July 2013 but granted at an oral hearing on 29 July 2013.  Although the Equality and Human Rights Commission sought to intervene on 9 September 2013, permission was only granted on 14 October 2013. 

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Court Fees

Background

As readers will be aware, the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 made on 28 July 2013 came into force on 29 July 2013.  Following such, claims in the ET and appeals to the EAT may only be started and continued upon payment of fees  unless an individual applies and qualifies for a remission. 

Concerned about the impact of the same, Unison issued judicial review proceedings on 28 June 2013 then issued an application for urgent interim relief.  Permission to apply was originally refused on 23 July 2013 but granted at an oral hearing on 29 July 2013.  Although the Equality and Human Rights Commission sought to intervene on 9 September 2013, permission was only granted on 14 October 2013. 

In short, Unison brought four challenges :
(1)    [the fees Order] violates the principle of effectiveness since it will make it virtually impossible, or excessively difficult, to exercise rights conferred by EU law;
(2)    [the fees Order] 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)    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)    The effect of the 2013 Order is indirectly discriminatory and unlawful.

The much anticipated High Court ruling came on 7 February 2014, which you can read here. By way of summary:

Principle of Effectiveness
Although there was no dispute that the principle of effectiveness applied, the Court proved unimpressed by the hypothetical evidence advanced by Unison regarding notional claimants .  Having considered the effect of the remissions in the periods before and between the dates upon which fees needed to be paid, the Court concluded that “there is a sufficient opportunity even for families on very modest means, as illustrated in the three notional claimants, to accumulate funds to pay the fees. Proceedings will be expensive but not to the extent that bringing claims will be virtually impossible or excessively difficult”.  Furthermore “the mere fact that fees impose a burden on families with limited means and that they may have to use hard-earned savings is not enough” .  It is of note that in the midst of its considerations the Court commented that it would expect claimants or their representatives to apply for directions to ensure that witness exchange takes place before a claimant is required to pay the hearing fee and, further, that they would expect full information exchange information to be encouraged by the Tribunal before the hearing fee is due.

Equivalence
The Court did not agree with the comparative actions Unison chose to rely upon and felt that the more appropriate domestic example would be a claim in contract for £20,000 brought in the County Court, since Employment Tribunal contract claims are limited to £25,000 and employment must have ended.  The Court compared the fees attributable to such a County Court action and deemed the total of £1,215 to be not significantly less than the £410 amount of the fee in a Type A claim, or £1,250 in a Type B claim .  Further, the Court noted the ‘real disincentive to claimants of limited means’ in County Court actions compared to ET claims regarding the potential liability for costs.

Breach of public sector equality duty
The Court took the view that Unison’s challenge did not have a promising beginning  noting that “time and energy could more properly be devoted to consideration of the substantive grounds, rather than attacks on the procedure adopted prior to the introduction of the regime” .  The “genuine fear” that the fee regime would impede the elimination of discrimination and advancement of equality of opportunity was acknowledged but it was noted that whether it is well-founded “may well depend on evidence yet to be obtained, as to how the regime has worked in practice”.

Indirect Discrimination
Unison, supported by the Commission, contended that the imposition of a higher rate of fees in Type B cases has a disparate impact on minority groups which constitutes indirect discrimination.  This was said to stem from the fact that discrimination claims are type B claims which attract a higher fee thus causing an intrinsic disadvantage to those falling within a protected class.  The Court noted that Unison and the Commission started with “the disadvantage of the shaky foundation of general statistics” having been compelled to rely upon an analysis of statistics  and went on to conclude that they had a “strong suspicion that there will be some disparate effect on those who fall within a protected class who bring Type B claims and therefore incur significantly higher fees”.   This was, however, caveated with the comment that “the extent to which the introduction of fees, if it pursues a legitimate aim, is proportionate, must be judged in part according to the impact upon those falling within a protected class” .  It was “not possible at this stage to form any clear view to the weight of the impact of the introduction of the scheme”, and further “weighing the extent of the impact is vital in reaching a conclusion as to objective justification”. 

Conclusion
Ultimately, in the view of the Court, the fundamental flaw in these proceedings was that they were brought prematurely  leaving them faced with judging the regime without sufficient evidence based only on the predictions of the rival parties .  The Lord Chancellor’s duty to take remedial measures to remove any disparate effect on those falling within a protected class, should one arise over the ensuing months, was emphasised.  The Court felt it more satisfactory to wait and see and to hold the Lord Chancellor to account if his optimism proved unfounded.

Unison has already made it clear that they intend to Appeal the decision  – watch this space

Leanne Buckley-Thomson

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