R (Unison) v Lord Chancellor (Equality and Human Rights Commission intervening)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Moses
Judgment Date07 Feb 2014
Neutral Citation[2014] EWHC 218 (Admin)
Docket NumberCase No: CO/8235/2013

[2014] EWHC 218 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moses

Mr Justice Irwin

Case No: CO/8235/2013

Between:
The Queen on the Application of Unison
Claimant
and
The Lord Chancellor
Defendant

and

The Equality and Human Rights Commission
Intervener

Ms Karon Monaghan QC and Mr Mathew Purchase (instructed by UNISON Legal Services) for the Claimant

Ms Susan Chan (instructed by The Treasury Solicitors) for the Defendant

Mr Michael Ford QC (instructed by Ms Rosemary Lloyd) for the Intervener

dates: 22–23 rd October and 4 November, 2013

Approved Judgment

Lord Justice Moses
1

This is a Judgment of the Court, to which we have both contributed.

2

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 ( S.I. 2013 No. 1893) an accessible statutory scheme for giving effect to employment rights has existed at no cost to employer or employee save in very limited cases. Some 40 years since the National Industrial Court was abolished and the jurisdiction of tribunals, originally established in the Industrial Training Act 1964, was extended by the Trade Union and Labour Relations Act 1974, s.42 of the Tribunals, Courts and Enforcement Act 2007 conferred power on the Lord Chancellor to make an order prescribing fees in respect of "added tribunals", which include Employment Tribunals and the Employment Appeal Tribunal (s.42(3) of the 2007 Act and the Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013 (SI 2013/1892)).

3

A public consultation took place, not so much as to whether fees should be imposed but as to how the fee charging scheme should work. Consultation started on 14 December 2011 and ran for four months until 6 April 2012. On 13 July 2012 the Lord Chancellor responded to that consultation. On 25 April 2013 he laid a draft order before Parliament. This was approved by both houses under the affirmative resolution procedure. The Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 was made on 28 July 2013 and came into force on 29 July 2013.

4

Between 29 July 2013 and 7 October 2013 a fee remission scheme was operated, identical to a remission scheme applying across civil courts of England and Wales, which was set out in Schedule 3 of the 2013 Fees Order.

5

On 7 October 2013 a new remission scheme was introduced into the civil courts and tribunals by the Courts and Tribunals Fee Remissions Order 2013 (SI 2013 No. 2302).

6

The effect of the 2013 Order is that claims in the employment tribunal and appeals to the Employment Appeal Tribunal can only be started and continued upon payment of fees (Article 3), subject only to an individual applying for and qualifying for a remission in accordance with Article 17 and Schedule 3.

7

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, 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, "the hearing fee".

8

The 2013 Order makes provision for two types of claim, Type A claims and Type B claims (see Articles 6 and 7). 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).

9

The intervener, the Commission for Equality and Human Rights, has pointed out that the Fees Order and the Guidance on the Order persists in containing what it describes as significant errors. Certain claims are wrongly described as falling under Type A, although Mr Latham, Deputy Director of Tribunals for HM Courts and Tribunals Service, has accepted they should be corrected. The published Guidance fails to correspond with the Order. The Guidance wrongly states that complaints as to equality clauses and for failure to inform and consult under TUPE fall within Type B, and ascribes Working Time Directive claims as falling under Type A. It is unnecessary for the purposes of these proceedings to investigate further whether these errors have been corrected, but they underline a significant feature of these claims, namely, that they are brought at the very outset of the introduction of this scheme with little opportunity to see how the scheme for payment of fees and remission will work in practice. Unison and the Commission say that if they waited it would be too late to challenge the Order, whilst the Lord Chancellor says that these claims are premature. I merely comment at this stage that the attempt to bring these proceedings as a matter of urgency has merely added to the amount of paper and controversy.

10

After Unison had issued proceedings on 28 June 2013 it issued an application for urgent interim relief. Permission to apply for judicial review was originally refused on 23 July 2013 but granted at an oral hearing on 29 July 2013. Although the Equality and Human Rights Commission sought to intervene on 9 September 2013, permission was only granted on 14 October 2013. No directions were given as to the length of any written argument nor as to the length of the written intervention. The result was an excessively detailed written argument on behalf of the claimant, peppered with footnotes and with rival arguments as to statistics. Through no fault of its own, but as a direct result of the absence of any directions from the court as to the management of these proceedings, the extensive written submissions of the Equality and Human Rights Commission arrived very shortly before the hearing, giving the Lord Chancellor no proper time to respond.

11

Unsurprisingly, the time for the hearing of the proceedings was too short. Further written arguments were prepared, and a further hearing was held on 4 November 2013. Further written arguments and documents arrived even after the close of that hearing. In short, the understandable attempt to bring these proceedings as a matter of urgency has merely led to over complicated and detailed argument and delay. It is difficult to see how this is a sensible way to litigate these important issues. Proper case management limiting the written argument and giving adequate time to identify and comment upon the most significant points might have led at least to an easier and possibly speedier resolution of the issues.

12

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 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). There are fees payable in respect of particular applications, including an application to secure dismissal following withdrawal. This is the only means by which claimants may, of their own volition, finally terminate proceedings in an employment tribunal.

13

The fees to pursue an appeal to the EAT are, in the case of an individual claimant, higher. They are £400 on issue and £1,200 following a direction by the EAT that the matter is to proceed to an oral hearing (Articles 13 and 14).

14

The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and the Employment Appeal Tribunal Rules 1993 (as amended) make consequential provision for the payment of fees. An Employment Tribunal shall reject a claim where it is not accompanied by a fee or a remission application. Where a claim is accompanied by a fee but the amount paid is lower than the amount payable for the presentation of that claim, the tribunal will send the claimant a notice specifying the additional amount due, and the claim or part of it in respect of which the relevant fee has not been paid will be rejected by the Employment Tribunal, if the amount due is not paid by a date specified. If the remission application is refused in part or in full, the Employment Tribunal will send the claimant a notice and the claim will be rejected by the Employment Tribunal if the fee is not paid by the date specified (Rule 11). Thus the claimant may not institute proceedings at all without payment of the fee or presentation of a remission application. There are similar Rules in relation to the EAT.

15

At the time these proceedings were launched there was no stated presumption that an employer would pay the costs of the issue of the proceedings or the hearing fee, in the event that a claimant was successful. By Rule 76(4) a tribunal is given the power to make a Costs Order after a tribunal fee has been paid but there is no default position in relation to a winning claimant. The Government's Guidance merely pointed out that judges would have the power to order respondents to pay fees back to the claimants where an employment judge considers it appropriate. By the time of the adjourned hearing the Government had, however, relented, and has amended the Guidance to say "the general position is that, if you are successful, the respondent will be ordered to reimburse you". Apparently, this amended Guidance will be placed on the Ministry of Justice website "as soon as possible". Consideration is being given to amending Rule 76(4) of the ET...

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1 books & journal articles
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