The Court of Appeal has today dismissed Unison’s judicial review proceedings challenging the introduction of fees into the Tribunal (and EAT) system. Since the introduction of fees, the numbers of claims issued in the Tribunal (and appeals in the EAT) have dropped significantly (and many argue is a direct consequence) see related post.
By way of a reminder, Unison’s arguments in the proceedings were four-fold based on:
1) A breach of the Principle of Effectiveness – ie the introduction of fees made it impossible or excessively difficult for claimants to enforce their EU rights.
2) A breach of the Principle of Equivalence – this point again related to an individual’s ability to enforce their EU rights (but was abandoned by Unison’s Counsel in the course of proceedings).
3) Indirect Discrimination; and
4) The Public Sector Equality Duty
The Court confirmed the view that the charging of fees is not in itself objectionable (but such fees should not be disproportionate). Unison’s challenge highlighted the sharp decline in employment tribunal cases since the introduction of fees and the Court was ‘troubled’ by this impact. However, the Court noted that a case based on the overall decline in claims ‘cannot succeed by itself’ and drew a distinction between a claimant who was simply ‘put off’ bringing a claim due to the fees versus a claimant for whom the introduction of fees made it impossible to pursue a claim in practice. In the Court’s view the challenge needed to be supported by evidence of ‘actual affordability of the fees in the financial circumstances of (typical) individuals’. The Court noted that such evidence was necessary in order to reach ‘a reliable conclusion that the fees payable under the Order will indeed be realistically unaffordable in some cases’.
The Court also noted the possibility for a Claimant to obtain a fee remission by establishing ‘exceptional circumstances’ and confirmed that a reasonably broad view should be taken of what this might constitute. As such, the principle of effectiveness would not be breached. In his conclusion, Underhill LJ noted that the Government has committed to undertake a review of the fees regime to look at how the fees have met the original financial and behavioural objectives while maintaining access to justice. See related post.
The Court also dismissed the challenge based on indirect discrimination and the public sector equality duty. Unison has confirmed that it intends to appeal the decision, so this is certainly not the last we will hear on this issue.