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

This judicial review challenged the 2013 fees regime for Employment Tribunals and the Employment Appeal Tribunal on two grounds: (i) that it breached the EU principle of effectiveness by making access to enforcement of rights (in particular equality rights) virtually impossible or excessively difficult; and (ii) that it operated as indirect discrimination (principally against women) in breach of section 19 of the Equality Act 2010 and analogous EU non‑discrimination principles. The court analysed the legal standard for effectiveness (drawing on ECJ and ECHR jurisprudence including Levez and cases such as Airey, Podbielski and Apostol), and held that the claimant had to show that fees in practice made access illusory or excessively difficult, not merely burdensome.

The Divisional Court concluded that the claimant’s evidence, consisting largely of aggregated statistics showing a marked fall in tribunal applications since fees were introduced, did not demonstrate that any identifiable class of litigants was unable as opposed to unwilling to litigate. The court found no established indirect discrimination on the required proper "pool" analysis and, in any event, held that the fee regime pursued legitimate objectives (cost contribution, efficiency and encouraging alternative dispute resolution) which were rational and, overall, proportionate given the remission arrangements and the prospect of recovery of fees by successful claimants. The application was dismissed.

Background and nature of the application:

• This was a judicial review by the trade union Unison seeking relief against the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 and the associated remissions scheme (introduced by the Courts and Tribunals Fee Remissions Order 2013). The principal relief sought was quashing of the scheme or other declaratory relief on the grounds that the fees regime unlawfully impeded access to justice and operated indirectly discriminatorily.

Parties and issues:

• The claimant: Unison. The defendant: The Lord Chancellor. Intervener: Equality and Human Rights Commission.
• Issues decided: (i) whether the fees regime infringed the EU principle of effectiveness by rendering rights derived from EU law (notably discrimination and equal pay claims) practically unenforceable, and (ii) whether the regime operated as indirect discrimination (primarily against women) under section 19 Equality Act 2010 and related EU law, and if so whether it was justified.

Factual and procedural context:

• The fees regime required payment of an issue fee and a later hearing fee for Employment Tribunal and EAT claims, with two claim types (Type A and Type B) attracting different levels of fees and a national remission scheme to relieve the poorest. The claimant had pursued a previous challenge ([2014] EWHC 218 (Admin)) where some grounds were rejected and the court found the earlier challenge premature. This application relied on fuller statistics produced after the scheme had been in operation.

Court’s reasoning on the principle of effectiveness:

• The court restated that restrictions on access may be permissible if proportionate to legitimate aims but that a fee will breach effectiveness if it in practice makes access virtually impossible or excessively difficult. The appropriate test is fact sensitive. Aggregate statistical evidence showing a substantial fall in claims after introduction of fees raised concern, but did not establish that particular litigants were unable to bring claims rather than simply discouraged from doing so.
• The court emphasised the need for concrete evidence from affected individuals so that their income, expenditure and capacity to pay could be assessed; absent such evidence the court would be unable to conclude that the right of access was illusory. It also noted the Lord Chancellor’s discretionary power to remit fees in exceptional cases as a possible remedy for isolated injustices.

Court’s reasoning on indirect discrimination:

• The court held that the proper comparator (the relevant pool) is all those subject to the PCP (here, all Type B claimants), not a self‑selected subgroup (for example, only discrimination claimants). On available data the claimant had not discharged the burden of showing an adverse impact sufficient to establish indirect discrimination. Even if a small adverse impact existed, the Lord Chancellor had legitimate aims (sharing costs, improving efficiency and promoting conciliation) which were rationally connected to the fee structure and, overall, proportionate in light of the remission scheme and fee recovery mechanisms.

Conclusion and wider observations:

• The Divisional Court dismissed the judicial review. The court noted the striking fall in tribunal claims after fees were introduced and recognised the public‑policy importance of the issues raised, but concluded that quashing the scheme on the evidence before it would be inappropriate.

The application for judicial review is dismissed. The court held that (a) the claimant had not established that the fee regime breached the EU principle of effectiveness because the available statistical evidence did not show that particular litigants were rendered unable to bring claims as opposed to being deterred, and (b) the claimant had not established unlawful indirect discrimination in respect of sex; even if a small adverse impact existed the scheme pursued legitimate objectives and was proportionate overall.

This was the second Divisional Court consideration of challenges to the tribunal fee regime. The earlier hearing resulted in dismissal of several grounds as premature: R (on the application of Unison) v The Lord Chancellor [2014] EWHC 218 (Admin); [2014] ICR 498. The present decision is reported at [2014] EWHC 4198 (Admin).