Unison, R (On the Application Of) v The Lord Chancellor

The lawfulness of a tribunal-fee regime turns on practical access to justice. A fee is unlawful where claimants cannot realistically afford it, having regard to essential expenditure. A reduction in claims or reluctance to litigate is insufficient by itself. A general challenge requires evidence of a real risk of unaffordability; carefully constructed notional individuals may provide that evidence. An exceptional-remission power may preserve the scheme if interpreted broadly enough to assist those unable realistically to pay. Indirect discrimination requires comparison between groups subject to the same provision, criterion or practice. A higher fee for more resource-intensive claims may be justified by that relationship. Equality impact assessments are working tools, and review focuses on conscientious consideration of essential equality issues and rational conclusions.

Unison challenged the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013, arguing that its fees and remission scheme denied effective access to justice, caused indirect discrimination and breached the public sector equality duty. Its first judicial review was dismissed by a Divisional Court in [2014] EWHC 218 (Admin), principally because the challenge was considered premature. A second challenge, supported by evidence of the reduction in claims, was dismissed in [2014] EWHC 4198 (Admin). The appeals concerned the effectiveness principle, indirect discrimination, section 149 of the Equality Act 2010, and the proper treatment of the first challenge as premature.

1. Both appeals were dismissed. Underhill LJ gave the judgment, with which Davis LJ and Moore-Bick LJ agreed.
2. The effectiveness principle, reflected in article 47 of the EU Charter and the access-to-court guarantee in article 6 of the European Convention of Human Rights, requires access to be practical rather than theoretical. The relevant question is whether the claimant can realistically afford the fee after essential living expenses. A scheme is unlawful if it inherently creates a real risk that claimants will be denied access to justice for that reason. The marked fall in tribunal claims did not, without more, prove inability to pay. Evidence of the affordability of fees for actual or carefully constructed notional individuals was required, although the court rejected the lower court’s view that only actual individuals could be relied upon.
3. Paragraph 16 of Schedule 3 to the Employment Tribunal and the Employment Appeal Tribunal Fees Order 2013 had to be interpreted conformably with the effectiveness principle. The exceptional-circumstances discretion could extend beyond wholly idiosyncratic cases and should provide remission for claimants who could not realistically afford the fees. The evidence did not establish that the scheme breached the principle.
4. The indirect-discrimination challenge failed. For the alleged higher fee for type B claims, the relevant comparison was between all persons bringing type B claims, not a self-selected subgroup such as discrimination claimants. The differential fee was objectively justified by the greater typical demand made by type B claims on tribunal resources. The rough nature of the type A/type B boundary did not invalidate it. The further statistical challenge failed because the evidence did not establish the necessary disparate impact.
5. The public sector equality duty challenge also failed. An equality impact assessment is a working tool, not a forensic document. Review asks whether the essential equality questions were conscientiously considered and whether conclusions were irrational. The duty is continuing, but later events proving a prediction wrong do not by themselves establish an original breach.
6. The observations on prematurity were obiter. A pre-implementation challenge was not formally premature where an unlawful impact was necessarily or sufficiently clearly established. Nevertheless, it was proper in the circumstances to decline relief based on disputed predictions which experience would soon test.

• Court of Appeal (Civil Division) dismissed both appeals against the decisions in [2014] EWHC 218 (Admin) and [2014] EWHC 4198 (Admin).
• Divisional Court, Administrative Court dismissed the second challenge in [2014] EWHC 4198 (Admin) and granted permission to appeal.
• Divisional Court, Administrative Court dismissed the first challenge in [2014] EWHC 218 (Admin); permission to appeal was initially refused, but limited permission was subsequently granted.