Unison’s legal challenge to the regime fails for a second time

Since employment tribunal fees came in in July 2013, statistics show the number of claims going to tribunal has fallen off a cliff. We are now seeing around 80 per cent fewer cases coming before the employment tribunals year on year. Although this may partly be explained by the introduction at the same time of the Acas early conciliation procedure, many have questioned whether the fees are preventing access to justice for lower paid employees and certain types of claims.

The trade union Unison has challenged the legality of the fees regime through the courts. Its first attempt failed. The union tried for a second time in the High Court in October. We learnt on 17 December that this attempt had also failed. Why has this happened?

Arguments against 

Unison put its legal arguments in two ways. First it said the fees scheme was unlawful because it infringed the EU legal principle of effectiveness. The rule in Europe is that the procedural requirements for domestic legal actions must not make it ‘virtually impossible’ or ‘excessively difficult’ for people to exercise rights conferred by EU law. In its second attempt at challenging the scheme, Unison relied on statistics as evidence, having previously used only hypothetical examples to show the effect of tribunal fees on the ability of claimants to bring actions against their employers. However, these were not actual instances of individuals who had said they had not been able to bring claims because of the fees regime.

Court decision

The High Court ruled that while the statistics might show that fees have had a marked effect on the willingness of workers to bring claims, they did not prove that any of the workers were unable, as opposed to unwilling, to do so.

Unison's second argument was that the fee scheme was indirectly discriminatory against women, ethnic minorities and disabled people, although the union focused more on the position of women. The court rejected this argument too. Furthermore, the court decided that the government’s objectives (that taxpayers should not foot the bill for claimants who were able to pay) in setting up the fees scheme were legitimate, justified and proportionate to any discriminatory effect they might otherwise have caused.

What next?

Unison has already announced that it will appeal. However, given the stature of the lead judge in the latest application (Lord Justice Elias) and the careful way in which he considered the claimants’ arguments and knocked all of them back, it is not clear how likely it is that an appeal will succeed. Whatever happens, it would seem Unison will need to come up with concrete examples of individuals who have decided they cannot feasibly bring a claim because of the fees involved.

It is more likely that we will see change via the political route. All the political parties have hitherto been reticent about responding to the current position. The government was supposed to be conducting a review 12 months after the introduction of fees, yet we have heard little more about this. It may be that the Coalition has been waiting for the outcome of this latest court case before deciding what to do.

The Labour party, on the other hand, is suggesting that it will not only reconsider the fees regime, if it gets in to power, but will also conduct a thorough review of the whole employment dispute system. It is not clear yet how the Liberal Democrats will react. Although the party supplies the employment ministers at the Department for Business, Innovation and Skills, it does not have control of the Ministry of Justice which is the government department which introduced the fees in the first place.

In political terms, it may not be necessary for there to be a judgment as to whether it is ‘virtually impossible’ or ‘excessively difficult’ to bring a claim under the fees regime. That is setting the bar very high, and in the political arena the regime is likely to be judged in accordance with a lower test.

One thing is for certain. Employment disputes are not simply going to disappear. They may just manifest themselves in a different way in future.

This article first appeared in People Management in January 2015.