Unison, R (on the application of) v The Lord Chancellor & Anor

A statutory fee regime is not unlawful merely because it makes proceedings more difficult or daunting. The question is whether, in its factual and legal context, fees make the enforcement of rights virtually impossible or excessively difficult. The assessment must have regard to claimants’ means, the timing and level of fees, remission arrangements, the importance of the rights involved and the practical value of any remedy.

For indirect discrimination, a disparate impact on one protected group is sufficient to require objective justification. The justification inquiry requires a sufficiently important aim, rational connection and means no more than necessary, having regard to alternative measures. Judicial review may be premature where the evidence cannot yet establish the regime’s practical impact. The Lord Chancellor must keep the regime under review and take remedial action if its operation unlawfully impedes access to justice or equality.

UNISON challenged the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013, which required fees for commencing and continuing employment tribunal claims and appeals to the Employment Appeal Tribunal, subject to remission.

The claim alleged breach of the EU principles of effectiveness and equivalence, breach of the public sector equality duty under the Equality Act 2010, and indirect discrimination. The Equality and Human Rights Commission intervened. The central issue was whether the lawfulness of the regime could properly be determined before reliable evidence existed as to its practical effect.

1. Effectiveness. The principle of effectiveness requires domestic procedures not to make enforcement of EU rights virtually impossible or excessively difficult. The assessment must consider the procedural rules in their factual and legal context, including the importance of discrimination rights and the practical value of remedies.

2. The evidence concerning hypothetical claimants did not establish that the fees, considered with the available remission periods, made proceedings virtually impossible or excessively difficult. The first ground was dismissed. The court identified no universal test for when fees become excessive; actual examples and reliable evidence of deterrence would usually be more informative.

3. Equivalence. The court assumed, without deciding, that at least one proposed comparator was a proper domestic comparison. The claim nevertheless failed. County Court claims involved comparable or greater fees, potential liability for the successful party’s costs, and no equivalent free ACAS conciliation service. The fee regime therefore did not breach equivalence.

4. Public sector equality duty. The Lord Chancellor had undertaken extensive consultation and equality-impact assessment. The duty required conscientious consideration of relevant impacts, but did not require acceptance of the objectors’ conclusions or forensic analysis of every issue. Any substantive defects in the regime were better tested under the discrimination ground. The third ground was dismissed.

5. Indirect discrimination. Women were more likely to bring Type B claims attracting higher fees. This established a strong suspicion of disparate impact, but the court could not reliably determine its extent from the contested statistics. Objective justification could not properly be assessed without knowing the weight of the disadvantage.

6. The regime pursued potentially legitimate aims, including transferring part of tribunal costs, encouraging efficiency and promoting settlement. However, general policy assertions were insufficient by themselves. Proportionality depended on reliable evidence of the actual impact, including the availability of remission and alternative arrangements.

7. The proceedings were premature. Parliament had approved the regime, the Lord Chancellor had undertaken to monitor it, and the evidence available at the hearing was insufficiently robust to overturn it. The application was dismissed. A future challenge could not be resisted merely as out of time on the basis that this claim had been premature.

First-instance judicial review proceedings in the Administrative Court. The application was dismissed.