A trade union which challenged the introduction of fees for claimants to pursue employment tribunals has had an appeal for judicial review of the policy refused.
Unison argued that the decline in the number of cases being brought to tribunal was due to claimants now having to pay anything up to £1,200, following the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 made by the Lord Chancellor, but the Court of Appeal in London dismissed the appeal after ruling that the “charging of court fees is not in itself objectionable” and that there was insufficient evidence of claimants’ ability to afford the costs.
Lord Justice Underhill , Lord Justice Davis and Lord Justice Moore-Bick heard that the fees order, introduced in July 2013, was intended to transfer costs of running the employment tribunal system to users and to encourage employers and employees to resolve disputes without going to tribunal, but the number of cases brought had fallen by over 80 per cent within a year of the fees coming into effect.
Unison claimed that the regime introduced by the fees order breached the EU “principle of effectiveness” by making it “impossible in practice, or excessively difficult, for claimants to enforce those rights”.
The union also argued that the fees order was “indirectly discriminatory” against claimants with particular protected characteristics and that in deciding to make the order, the Lord Chancellor “acted in breach of the duty” imposed by section 149 of the Equality Act 2010.
However, the judges dismissed that appeal.
Lord Justice Underhill said that although he was “troubled” by the drop in cases, “the case based on the overall decline in claims cannot succeed by itself”.
The court’s judgment stated: “It is quite clear from the comparison between the number of claims brought in the ET before and after 29 July 2013 that the introduction of fees has had the effect of deterring a very large number of potential claimants.
“However, that by itself does not evidence or constitute a breach of the effectiveness principle. It is inevitable that potential claimants will be more willing to embark on litigation when it is free than when they have to make a payment upfront, which there is no certainty of recovering; and the introduction of fees was accordingly bound to have such an effect. But it is well-established that the charging of court fees is not in itself objectionable.
“Even if it really were an irresistible inference from the decline in claims that at least some potential claimants could not realistically afford the fees, there is still no basis for forming any reliable view about the numbers of such cases, or how typical they may be; and, for reasons which will appear, that is an important matter. In my view the case based on the overall decline in claims cannot succeed by itself.
“It needs to be accompanied by evidence of the actual affordability of the fees in the financial circumstances of (typical) individuals. Only evidence of this character will enable the Court to reach a reliable conclusion that that the fees payable under the Order will indeed be realistically unaffordable in some cases.”
In February 2014, the trade union’s first challenge to the fees system was unsuccessful, after the High Court ruled that it was “premature” to judge the effectiveness and impact of fees.
In December 2014, a second challenge came before the Divisional Court, with the union able to rely on new statistical evidence suggesting that certain vulnerable groups, such as single mothers, would be particularly disadvantaged by employment tribunal fees, but the claim was dismissed.
Appealing against those decisions, Unison argued that the fees order was discriminatory against persons in each of the protected categories recognised in EU and domestic law, but the appeal judges upheld the previous decisions as they did not believe there any “flaw” had been shown the in the reasoning or conclusion on the discrimination challenge.
The court also dismissed the appeal against the rejection by the Divisional Court of the public sector equality duty challenge.