Moses LJ and Irwin J decision in Unison (No.1)

The claimant challenged the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 and related remission rules on four grounds: breach of the EU principle of effectiveness, breach of the principle of equivalence, breach of the Public Sector Equality Duty (Equality Act 2010 s.149), and indirect discrimination. The court analysed the fees regime (issue and hearing fees; distinction between Type A and Type B claims; the remission arrangements and the later Courts and Tribunals Fee Remissions Order 2013) against those legal principles.

The court concluded that the evidence before it was insufficiently robust to show that the scheme made vindication of EU-derived rights virtually impossible or excessively difficult, that the fees breached the equivalence principle, or that the Lord Chancellor had failed to comply with the procedural requirements of the public sector equality duty. The court recognised a genuine suspicion of a disparate impact on protected groups from higher Type B fees but found the factual evidence inadequate to determine the extent of any disparate impact or to judge objective justification.

This judicial review concerned the lawfulness of the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) and associated remission rules, following its introduction in July 2013. The claimant, UNISON, sought relief quashing or otherwise challenging the Order and its practical operation, arguing that the requirement to pay fees (and the structure of fees and remissions) unlawfully impeded access to tribunal justice.

Background and parties: UNISON brought the claim against the Lord Chancellor, with the Equality and Human Rights Commission intervening. The claims attacked the fees regime on four principal grounds: (1) breach of the EU principle of effectiveness (the fees would make it virtually impossible or excessively difficult to enforce EU-derived rights); (2) breach of the equivalence principle (domestic procedures less favourable than comparable domestic actions); (3) breach of the Public Sector Equality Duty in the decision-making process (Equality Act 2010 s.149); and (4) that the fees operated as indirect discrimination against protected groups.

Procedural posture: this was a first instance judicial review heard urgently over adjourned days. The court criticised the procedural management, the voluminous and late evidence and expert material, and accepted that the case was brought early after the Order came into force.

Issues framed by the court: (i) whether the fee regime breached the EU principle of effectiveness when assessed in the factual and procedural context of tribunal litigation (including the two-stage fee payments and remission tests); (ii) whether the regime breached the equivalence principle in comparison with domestic jurisdictions; (iii) whether the Lord Chancellor had properly discharged the Equality Act 2010 s.149 duty in formulating and consulting upon the scheme; and (iv) whether the higher fees for Type B claims indirectly discriminated against protected groups and, if so, whether they were objectively justified.

Reasoning and decision: on effectiveness, the court accepted the relevance of authorities such as Levez and Cofidis and acknowledged the particular importance of effective remedies for discrimination claims, but concluded that the available hypothetical and statistical evidence did not establish that the fee regime made vindication of EU rights virtually impossible or excessively difficult. On equivalence the court found no breach, noting, inter alia, differences in costs rules between tribunals and county courts and the Lord Chancellor's concession that successful claimants would generally be expected to recover fees from respondents. On the public sector equality duty, the court found that the Lord Chancellor had conducted a substantial consultation exercise and prepared equality impact assessments; criticisms were treated largely as disputes over the weight and conclusions of the assessment rather than procedural failure. On indirect discrimination the court accepted there was a plausible disparate effect on women and others bringing Type B claims but held the evidence inadequate to quantify the impact or to determine whether the fee differential could be objectively justified. The court stressed that the claim was premature and that practical experience and fuller evidence would better support any future challenge.

Relief: the application was dismissed. The court emphasised the continuing duty of the Lord Chancellor to monitor the regime and the availability of future challenges if concrete evidence of unlawful impact emerges.

The claim is dismissed. The court held that, on the material before it, the fees regime did not amount to a breach of the EU principle of effectiveness or equivalence, and the Lord Chancellor had carried out the necessary equality assessment under s.149 of the Equality Act 2010. Although there was a strong suspicion of some disparate effect from higher Type B fees on protected groups, the evidence was insufficient to establish indirect discrimination or to allow the court to determine objective justification. The challenge was also premature; the Lord Chancellor must keep the regime under review and remediate any unlawful effects revealed by subsequent evidence.