UNISON’s judicial review challenge to the introduction of fees in the Employment Tribunal system has failed. Superficially this is a tremendous result for employers. Far fewer employees are likely to challenge their treatment at work or their dismissals. Employers will be able to sit back and wait to see whether a potential claimant is prepared to pay to issue a claim and later to pay for the hearing itself. But the Tribunal system and the risk of claims underpins a whole framework of employment policies and processes which are fundamentally aimed at avoiding arbitrary and unreasonable management decisions in the workplace. The Judgment begins with a reminder of what we have lost: “From the introduction of the National Industrial Relations Court by the Industrial Relations Act 1971 until the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 an accessible statutory scheme for giving effect to employment rights existed at no cost to employer or employee save in very limited cases.”
The Government’s reasons for the reforms are said to be to avoid “drawn out disputes” which are “very emotionally damaging for workers and employers, as well as being financially damaging for employers”. Few would argue with that. However, those aims might have been achieved by more robust case management, weeding out weak cases and striking out cases for unreasonable behaviour, rather than introducing a system which financially deters those with genuine cases from enforcing their rights.
These reforms along with others such as the extension to two years of the minimum service requirement to claim unfair dismissal do not appear in the manifestos of the Conservative party or their Liberal Democrat coalition partners. No one voted for these reforms. In my experience even the most pro-deregulation industrialists can be appalled by the lack of employment protection when their wives, children and friends run into employment problems at work. UNISON have announced that they intend to appeal to the Court of Appeal. In the meantime and with an election on the horizon, maybe it’s time for the Labour Party to make a political commitment to repealing the fee system so at least the electorate has the opportunity to vote with a clear choice.
UNISON’s challenge, in which the Equality and Human Rights Commission appeared as Intervener, relied on four arguments.
The principle of effectiveness
The first argument was that 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, or excessively difficult, to exercise rights conferred by EU law. This principle is now enshrined in Article 19 of the Treaty on the European Union: “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”. The Court acknowledged that effectiveness is especially important in the context of discrimination. It also acknowledged the very real difficulties of mounting a successful discrimination claim including that whilst the “ability to bring discrimination cases is a vital plank in the means of combating discrimination” the “outcome of bringing such claims is difficult to predict and the rewards are small, with an even chance of failing successfully to enforce them”.
The Court acknowledged that fees, even with a remission system, were high but “The very use of the adverb “excessively” in the jurisprudence suggests that the principle of effectiveness is not violated even if the imposition of fees causes difficulty and renders the prospect of launching proceedings daunting, provided that they are not so high that the prospective litigant is clearly unable to pay them.”
Much of the argument was run on the basis of hypothetical claimants but UNISON also introduced figures from Employment Tribunal receipt statistics (Management Information July-September 2013). These showed dramatic falls in claims comparing September 2012 with September 2013. For example, a fall in all claims of 56%, of claims in the North West region of 82%, in Wales of 88%, in all Equality Act discrimination claims, including equal pay, of 78%, of sex discrimination claims of 86%, and of unfair dismissal claims of 81%. The Lord Chancellor contended that it was far too early to rely upon the accuracy of those percentages. But, the Court acknowledged, if they are anything like accurate then the impact of the fees regime has been dramatic.
Ultimately, the Court agreed with the Lord Chancellor’s submission that it was too early to tell whether the principle of effectiveness was being violated. The door is therefore left open to a later challenge based on more accurate data of what is actually happening in practice.
The principle of equivalence
UNISON’s second argument was that 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. There were complications in trying to make a comparison between Tribunal claims and those in the County Court in particular around the risk of costs in the County Court and the coming pre-claim conciliation process in the Tribunal. In the Court’s view, UNISON failed to demonstrate any breach of the principle of equivalence.
Public Sector Equality Duty
The third argument was 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. The Lord Chancellor has a duty to have due regard in exercising his functions to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between those who share protected characteristics and those who do not under s.149(1) of the Equality Act 2010.
The Court acknowledged that a public authority must collect, collate and consider all relevant information as to the likely impact of its proposals. However, it is for the public authority to decide what is relevant and irrelevant, subject only to challenge on conventional public law grounds. The Court seems here to have undertaken a quantative rather than qualitative assessment of the work that was put into equality impact assessing the proposals. Various consultations and assessments were undertaken but whether they were any good is not really explored.
UNISON’s final argument was that the effect of the 2013 Order is indirectly discriminatory and unlawful. The argument runs that the apparently neutral provision, criterion or practice of requiring claimants to pay a higher fee in Type B cases rather than Type A cases, disadvantages a substantially higher proportion of those within a protected class, such as women, ethnic minorities, and the disabled and cannot be objectively justified. The Court acknowledged the complexity of the argument but seems to have taken a too early to tell, too little time to assess attitude to the evidence.
Overall, the Court acknowledged the genuine fear that the introduction of the fee regime will impede the vital goal of eliminating discrimination and advancing equality of opportunity. Whether that fear is well-founded may well depend on evidence yet to be obtained, as to how the regime has worked in practice. Cold comfort to those who lose out in the meantime!