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Challenging Employment Tribunal Fees: R (Unison) v Lord Chancellor and another (No 2)

Document Cited authorities 10 Cited in Related
Date01 May 2015
AuthorNicole Busby
DOI10.3366/elr.2015.0277
Pages254-259
Published date01 May 2015
<p>In <italic>R (Unison) v Lord Chancellor and another (No 2)</italic> <xref ref-type="fn" rid="fn1"><sup>1</sup> </xref><fn id="fn1"><label>1</label> <p><a href="https://vlex.co.uk/vid/r-unison-no-2-793277525">[2014] EWHC 4198 (Admin)</a>, henceforth “<italic>R (Unison) No 2”</italic>.</p> </fn> the High Court rejected Unison's second application for judicial review of the policy of charging claimants to the Employment Tribunal (“ET”) and the Employment Appeal Tribunal (“EAT”).<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref><fn id="fn2"><label>2</label> <p>Introduced by the Employment Tribunals and Employment Appeal Tribunal Fees Order <a href="https://vlex.co.uk/vid/the-port-security-port-812185345">2013, SI 2013/1893</a>.</p> </fn> The policy, which was introduced across Great Britain by the coalition government in July 2013, removed the free access that has been in place since the National Industrial Relations Court was established by the <a href="https://vlex.co.uk/vid/industrial-relations-act-1971-808074541">Industrial Relations Act 1971</a>. Had the court decided to strike it down, the judgment would have been effective in Scotland as well as in England and Wales. However, further devolution may lead to some interesting developments which are discussed at the end of this article.</p> BACKGROUND

The Fees Order and the Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 20133

SI 2013/1892.

now determines that claims in the ET and appeals to the EAT can only be started and continued upon payment of fees4

Art 3.

 unless an individual qualifies for a full or partial waiver, known as a remission.5

In accordance with art 17 and sch 3 of the Fees Order.

 Claims are divided into two types, each with two separate fees: Type A claims, which include unlawful deductions from wages and breach of contract, attract an issue fee of £160 and a hearing fee of £230; and Type B claims, which include unfair dismissal and discrimination, attract fees of £250 and £950. Different rates are applicable in claims involving multiple claimants. Appellants to the EAT are charged a lodgement fee of £400 and a hearing fee of £1200

At a previous judicial review application,6

R (Unison) v The Lord Chancellor and another [2014] EWHC 218 (Admin), heard by the High Court on 7 Feb 2014.

Unison ran a number of arguments to challenge the legality of the regime. Although unsuccessful, not all of these arguments were completely rejected by the High Court, with two (outlined below) found to lack the robust evidence required to justify overturning the policy. As the application had been brought prior to the publication of official statistics showing the decline in the number of ET claims, the court found that it was too early to say whether the fees would have the unlawful effects claimed by Unison, holding that “[i]t seems to us more satisfactory to wait and see and hold the Lord Chancellor to account should his optimism as to the fairness of this regime prove unfounded.”7

Ibid at para 89.

 Unison's appeal against this decision was subsequently stayed and permission was granted to bring a second application following the publication of official statistics THE APPLICATION FOR JUDICIAL REVIEW

In the fresh application, Unison, with the Equality and Human Rights Commission as intervener, challenged the fees regime on two main grounds. Firstly, that it had had a negative effect on the access to justice of certain groups of claimants in violation of the EU principle of effectiveness, making it virtually impossible, or excessively difficult, for a significant number of potential claimants to afford to exercise rights conferred by EU law (thus making such rights illusory). Secondly, that the regime indirectly discriminates against women, who are more likely than other groups of workers to be on low incomes. The Lord Chancellor's failure to establish that such disadvantage is justified was argued to render it unlawful under EU law, the ECHR,8

Art 6 read with art 14.

and section 19 of the Equality Act 2010

In evidence Unison relied on statistical information which showed that, from October to December 2013, following the introduction of fees, 79% fewer claims were accepted by the ET compared with the same quarter in the previous year...

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