We reported last week that the Court of Appeal had rejected Unison's challenge to the Government's employment tribunal fee regime in R (on the application of Unison) v The Lord Chancellor and another  EWCA Civ 935. We examine the decision and look at some other developments, which may have an impact on the fees regime.
The Government introduced a new fees regime with effect from 29 July 2013, under which all employment tribunal (ET) claimants and Employment Appeal Tribunal (EAT) appellants have to pay a fee in order to bring and pursue claims and appeals, unless they qualify for remission on the basis of gross monthly income and disposable capital.
The trade union Unison applied to the High Court for judicial review and a quashing of the order that introduced fees on the grounds that the fees regime:
- Breached the EU principle of effectiveness since claimants did not have access to an effective remedy;
- Had been implemented without due regard to the Government's public sector equality duty; and
- Gave rise to indirect discrimination since imposing a higher level of fees for discrimination claims discriminated against those with protected characteristics.
First High Court decision
The High Court rejected the application and believed that it was premature, due to the lack of evidence available as to the impact of fees. It did not see a problem with Unison making a further application in the future.
Following the High Court's decision, statistics emerged showing a dramatic fall in the number of ET claims brought following the introduction of fees and Unison made a second application.
Second High Court decision
The second application was also rejected since the statistics did not show that any individual had been prevented from bringing a claim by the level of fees. Any indirect discrimination was justified by reference to the Government's aim of transferring a proportion of the running costs of the ETs and the EAT to those who use them, improving efficiency by reducing the number of unmeritorious claims and encouraging alternative methods of dispute resolution.
Unison appealed both High Court decisions to the Court of Appeal, relying on the same three grounds as in its first application to the High Court.
Court of Appeal decision
The Court of Appeal noted that it was "troubled" by the "startling" decline in ET claims but, in a unanimous decision, it agreed with the High Court that Unison had not provided the required evidence to establish that the fees regime breached the EU law principle of effectiveness: the statistics relied on did not prove that any individual had been prevented from pursuing a claim in respect of an EU-derived employment right. Put another way, the statistics did not show that claimants were unable – as opposed to unwilling – to pay the fees and therefore did not have effective access to justice. The existence of the remission system and the Lord Chancellor's discretion to waive fees in exceptional circumstances meant that a breach of the principle of effectiveness had not been demonstrated.
The Court also upheld the High Court's decision that the fees regime was not indirectly discriminatory against women, as it was objectively justified and it was legitimate to have a connection between the level of the fee and the demand placed by a claim on the ET's resources.
The Lord Chancellor had complied with the public sector equality duty when introducing fees and the Equality Impact Assessment had not been inadequate.
Unison is reportedly seeking permission to appeal to the Supreme Court.
The Court of Appeal was sympathetic to Unison's arguments in relation to breach of the effectiveness principle but, without evidence that claimants could not afford to bring a claim, the Court was not able to find that ET fees made it impossible or excessively difficult for them to enforce their rights. Assuming that Unison is given permission to appeal to the Supreme Court, it will have to overcome this hurdle.
The Ministry of Justice is carrying out a review of ET fees and the fee remission scheme, which is expected to be completed later this year. An inquiry into court and tribunal fees is also being conducted by the House of Commons Justice Select Committee, which will focus on whether the introduction of fees has affected access to justice and the volume and quality of cases brought. Lastly, the Scottish Government announced this week in "A Stronger Scotland: the Government's Programme for Scotland 2015-16" that it intends to abolish employment tribunal fees in Scotland. Together, these developments may lead to a reduction in the level of fees or an expansion of the remission scheme but it looks likely that ET fees are here to stay.