Trisan Hyatt, tenant at Invictus Chambers, considers the Court of Appeal’s decision in R (Unison) v Lord Chancellor and another (2015) EWCA Civ 935.
In January 2015 Unison, the public sector trade union, was granted permission to appeal to the Court of Appeal (“the court”) after the High Court dismissed UNISON’s second challenge to the lawfulness of the system of employment tribunal and Employment Appeal Tribunal fees introduced in July 2013.
On appeal in R (Unison) v Lord Chancellor and another (2015) the court however dismissed Unison’s challenge to the introduction of fees in the employment tribunals and EAT, rejecting Unison’s attempt to have employment tribunal fees declared unlawful. An overview of the court’s decision and the preceding litigation is provided below.
Fees in the employment tribunal and EAT
In an earlier article this year we noted that fees were introduced in the employment tribunals and EAT on 29 July 2013 by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) (Fees Order 2013). The Fees Order 2013 was made pursuant to the power given to the Lord Chancellor by section 42(3) of the Tribunals, Courts and Enforcement Act 2007 and the Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013 (SI 2013/1892).
Claims are divided into two types: Type A (for example, claims for statutory redundancy payments, unlawful deductions from wages and breach of contract) and Type B (for example, unfair dismissal, discrimination and whistleblowing). For a single claimant, the issue fee for a Type A claim is £160 and the hearing fee is £230. The issue fee for a Type B claim is £250 and the hearing fee is £950. Individuals can apply for a full or partial fee remission which takes into account disposable capital and gross monthly income. The Lord Chancellor also has discretion to waive the fee in exceptional circumstances, whether or not the usual remission criteria are met.
Unison’s judicial review challenge
Unison challenged the lawfulness of the introduction of the fee regime by way of judicial review in a claim that was heard by the High Court and in which judgment was handed down on 7 February 2014 (Unison 1  EWHC 218). The claim was dismissed. One of the key reasons for dismissal of the claim was the fact that the High Court believed the claim to be premature, due to the lack of evidence available as to the impact of the Fees Order 2013.
Further proceedings were filed by Unison on 23 September 2014 (Unison 2  EWHC 4198). The grounds overlapped with Unison 1. However, Unison were now able to rely on evidence as to the impact of the Fees Order 2013. The claims in Unison 2 were also dismissed. Permission to appeal the decisions in Unison 1 and 2 was granted and the claims came before the court.
On appeal, Unison raised four grounds of challenge:
(1) Breach of the Principle of Effectiveness. Many of the types of claim over which the ET and the EAT (to which I will refer as “the Tribunals”, except where it is necessary to distinguish) have jurisdiction are derived from EU law. It was Unison’s case that the regime introduced by the Fees Order breaches the EU “principle of effectiveness” by making it impossible in practice, or excessively difficult, for claimants to enforce those rights. This challenge was argued in the Divisional Court in both Unison 1 and Unison 2.
(2) Breach of the Principle of Equivalence. It was argued in Unison 1 that the fees payable in respect of claims based on EU-derived rights meant that such claims were subject to a less favourable regime than those based on domestic rights. The point was not re-argued inUnison 2, because it was not affected by the evidence of the impact of the fee regime in its first year of operation. This ground was abandoned during the course of the hearing.
(3) Indirect Discrimination. The Fees Order was said to be indirectly discriminatory against claimants with particular protected characteristics. This challenge was argued in both courts below.
(4) The Public Sector Equality Duty. It was argued in Unison 1 that in deciding to make the Fees Order the Lord Chancellor acted in breach of the duty imposed by section 149 of the Equality Act 2010. The point was not re-argued in Unison 2 for the same reason as at (2) above.
The court dismissed the appeal. The court’s principal findings are considered below.
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Reproduced with the kind permission of Invictus Chambers.