R Unison (No. 2) v The Lord Chancellor Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Foskett J |
| Judgment Date | 17 December 2014 |
| Neutral Citation | [2014] EWHC 4198 (Admin) |
| Docket Number | Case No: CO/4440/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2014 |
[2014] EWHC 4198 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Mr Justice Foskett
Case No: CO/4440/2014
and
Ms Karon Monaghan QC and Mr Mathew Purchase (instructed by Unison) for the Claimant
Ms Susan Chan (instructed by The Treasury Solicitor) for the Defendant
Mr Michael Ford QC and Mr Spencer Keen for the Intervener
Hearing dates: 21, 22 October 2014
Until 29 July 2013 workers could take a whole variety of claims relating to their employment to Employment Tribunals, and any appeals could be pursued before the Employment Appeal Tribunal ("EAT") free of charge. The costs associated with the provision of this legal service were borne solely by the taxpayer. From that date, and pursuant to an order made by the Lord Chancellor under section 42 of the Tribunals Courts and Enforcement Act 2007 (the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013), applicants to an Employment Tribunal and appellants who wish to appeal to the EAT have to pay a fee before their applications or appeals will be accepted, unless they can bring themselves within the terms of a fee remission scheme. The effect of this scheme is to exempt some claimants entirely from the duty to pay fees whilst for others the fees are reduced.
In this application for judicial review the trade union Unison challenges the fee scheme on two grounds. First, the union alleges that the scheme is unlawful because it infringes the EU principle of effectiveness. The cost is said to be such that it is virtually impossible or at least exceptionally difficult for a significant number of potential applicants to afford to bring a claim. Their employment rights are, it is argued, rendered illusory. Second, it is said that the fee scheme operates in an indirectly discriminatory way with respect to women, ethnic minorities and the disabled, and that the Lord Chancellor has failed to establish that the disadvantageous treatment meted out to these groups is justified.
This is the second time that these complaints have been pursued before the Divisional Court. On the first occasion two additional grounds were pursued. First, it was said that the scheme infringed the EU principle of equivalence which broadly requires that procedures for pursuing rights derived from EU law should be no less favourable than the procedures applicable to similar claims of a domestic nature; and second, that it was introduced in breach of the public sector equality duty. The Divisional Court (Moses LJ and Irwin J) rejected these grounds: [2014] EWHC 218 (Admin); [2014] ICR 498. They are not now in issue before us. The court also dismissed the two claims now being advanced on the basis of the information then before it. The court considered the applications to be premature; it was not satisfied that the scheme had been running long enough to enable the claimants to make good their claim. So these arguments were not foreclosed. Lord Justice Moses, giving the judgment of the court, said this (para. 89):
"This brings us to a fundamental difficulty with the whole of this case. Brought as it was in the belief that the lawfulness of the regime had to be challenged as a matter of urgency, and in any event within three months, the Court has been faced with judging the regime without sufficient evidence, and based only on the predictions of the rival parties throughout and after the hearing. Parliament decided, by affirmative resolution, to introduce the regime, authorised by statute, and debated and positively affirmed by both Houses of Parliament. Quite apart from the continuing obligation to fulfil the duties identified in the Equality Act, the Lord Chancellor has himself undertaken to keep the issue of the impact of this regime under review. If it turns out that over the ensuing months the fees regime as introduced is having a disparate effect on those falling within a protected class, the Lord Chancellor would be under a duty to take remedial measures to remove that disparate effect and cannot deny that obligation on the basis that challenges come too late. It 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. We believe both Unison and the Commission will be, and certainly should be, astute to ensure that accurate figures and evidence are obtained as to the effect of this regime.
No doubt the Lord Chancellor will also be doing the same, if he is successfully to resist a future challenge. In the meantime, we think that the fundamental flaw in these proceedings is that they are premature and that the evidence at this stage lacks that robustness necessary to overturn the regime. We would underline the obvious: there is no rule that forbids the introduction of a fee regime. The nature of that regime is closely dependent upon economic and social considerations and policy. The formation of such policies is itself dependent upon an accurate assessment of income and expenditure and the means of those who wish to use the Tribunal system, and in the light of the need to encourage challenges to discrimination in pursuit of the important goal of equality. This court did not find itself in any position accurately to collate the information, still less the evidence, in order to achieve a just resolution. The application is dismissed."
The claimant submits that it now has the relevant evidence and statistics to make good its claim on both remaining fronts.
The Lord Chancellor contends that the claims are still premature and that the very generalised nature of the statistics relied upon, with an absence of any concrete examples of specific individuals allegedly denied access to the tribunals, makes it impossible for the court to find in the claimant's favour.
We allowed the Equality and Human Rights Commission to intervene and present both written and oral argument. We are grateful to Mr Ford QC for his submissions, as indeed we are to all counsel.
The background
Employment Tribunals (then referred to as industrial tribunals) were set up by the Industrial Training Act 1964. Their jurisdiction has grown enormously since then and they now hear claims relating to both statutory and contractual rights in the employment related field, some of which are derived from EU law and some of which are home-grown. The overwhelming majority of claims are brought against employers, but they can also be taken against individuals and trade unions. In certain very exceptional jurisdictions employers can initiate proceedings, for example against improvement or prohibition notices issued pursuant to the Health and Safety at Work Act 1974.
Section 42(1) of the Tribunals, Courts and Enforcement Act 2007 conferred power on the Lord Chancellor to make an order prescribing fees in respect of anything dealt with by an "added tribunal", and by an order made pursuant to subsection (3) this includes Employment Tribunals and the Employment Appeal Tribunal: see the Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013 (SI 2013/1892)).
The first remission scheme was in place for only a few weeks until 7 October 2013 when a new, less generous, scheme was introduced. That is the scheme in issue in this application. This was introduced by the Courts and Tribunals Fee Remissions Order 2013 (SI 2013 No. 2302).
The effect of the 2013 Fees Order is that claims in the Employment Tribunal and appeals to the Employment Appeal Tribunal can only be commenced upon payment of a fee (Article 3), subject to an individual applying for and qualifying for a remission in accordance with Article 17 and Schedule 3.
By Article 4 there are two fee charging occasions. First, a fee is payable by a single claimant or a fee group when a claim form is presented to an Employment Tribunal; this is the "issue fee". Second, a fee is payable on a date specified in a notice accompanying the notification of the listing of a final hearing of the claim; this is the "hearing fee".
The 2013 Order makes provision for two types of claim, Type A claims and Type B claims. The amount of the fee depends on the type of claim. Type A claims are those listed in table 2 of Schedule 2 (Article 6) and Type B claims are all those which are not listed as Type A claims (Article 7). (Originally certain claims, including equal pay claims, were erroneously included as Type A claims but the error was corrected by the Tribunals Fees ( Miscellaneous Amendments) Order 2014). All discrimination claims are now type B claims.
The fees for Type A claims are prescribed by Schedule 2, table 3, column 2. On issue the fee is £160 and for a hearing the fee is £230. The fees for Type B claims are higher; they are prescribed by Schedule 2, table 3, column 3. The fee on issue is £250 and the fee for a hearing is £950. Special provision is made for claims involving multiple claimants (Articles 8, 10 and 12). Fees range from £320 as an issue fee and £460 as a hearing fee for a Type A claim with 2–10 claimants, to £1,500 issue fee and £5,700 hearing fee for a type Claim B with over 200 claimants (Schedule 2, table 4). In some multiple claims, therefore, such as equal pay claims brought by a large group of women, the amount which will have to be paid by each claimant may be small but obviously the fewer claimants in the group, the larger the...
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