Unison (No. 2), R (on the application of) v The Lord Chancellor

A fee regime does not breach the EU principle of effectiveness merely because it deters or burdens potential litigants. The question is whether, in practice, the fees make enforcement of EU rights virtually impossible or excessively difficult. Statistical reductions in claims may demonstrate deterrence but do not by themselves prove inability to litigate. Concrete evidence from affected individuals may be required.

Indirect discrimination must be assessed by reference to the whole pool subject to the provision, criterion or practice, not a self-selected subgroup. A fee scheme may be justified where it pursues legitimate aims, including contributing to tribunal costs, improving efficiency and encouraging alternative dispute resolution, provided the means are proportionate.

Unison brought judicial review proceedings against the Lord Chancellor, with the Equality and Human Rights Commission intervening, to challenge fees introduced for Employment Tribunal and Employment Appeal Tribunal proceedings under the Tribunals, Courts and Enforcement Act 2007 and associated fee orders.

A previous Divisional Court had dismissed an earlier challenge, including the present grounds, as premature: [2014] EWHC 218 (Admin); [2014] ICR 498. The present application relied on further statistics and challenged the regime on the grounds that it infringed the EU principle of effectiveness and caused unlawful indirect discrimination, particularly against women.

1. Effectiveness. The application was dismissed. The EU principle of effectiveness requires domestic procedures to avoid making EU rights virtually impossible or excessively difficult to exercise. It does not require every procedural burden to be removed. A restriction may also be unlawful where it is unnecessary and disproportionate, even though access remains practically possible.
2. The court distinguished those two principles. The present challenge concerned whether the fees effectively denied access to Employment Tribunals. The legitimate aim of requiring users who can afford it to contribute to the cost of the tribunal service was accepted. The substantial reduction in claims showed that the fees deterred some potential litigants, but did not establish that any identified person was unable, rather than unwilling, to bring a claim. Concrete evidence concerning income, expenditure and the particular claim was needed. The undefined scope of the alleged defect, together with the Lord Chancellor’s exceptional-remission discretion, also made quashing the scheme inappropriate.
3. Indirect discrimination. Under section 19 of the Equality Act 2010, the relevant pool was all persons required to pay the challenged category of fee. It was impermissible to select only discrimination claims, or another self-selected subgroup, because that distorted the effect of the provision, criterion or practice. The claimant had not established a sufficient adverse impact on women.
4. Alternatively, any adverse impact was justified. The objectives were legitimate: transferring part of the tribunal cost to users able to afford it, improving efficiency by discouraging unmeritorious claims, and encouraging settlement and conciliation. Cost considerations may contribute to justification when combined with other legitimate objectives. The regime, including fee remission and the general possibility of recovering fees after success, was proportionate.
5. Foskett J agreed. He accepted that the statistical reduction raised a serious question and might, if examined through individual cases, reveal inability to proceed. But that conclusion remained speculative without convincing evidence. He added that any relevant claim would need to be at least arguably legitimate; discouraging claims with no arguable grievance could not infringe access to justice.

The earlier Divisional Court challenge was dismissed as premature: [2014] EWHC 218 (Admin); [2014] ICR 498. The present Administrative Court application was dismissed.