In R (on the application of Unison) v Lord Chancellor [2015] EWCA Civ 935, the Court of Appeal has rejected Unison’s challenge to the introduction of Employment Tribunal (‘ET’) and Employment Appeal Tribunal (‘EAT’) fees. 

The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 SI 2013/1893 (‘Fees Order’) introduced a new fees regime with effect from 29 July 2013. Pursuant to the Fees Order, all ET and EAT claimants are liable to pay a fee in order to bring and pursue claims and appeals, unless they qualify for remission of those fees. 

Unison brought a challenge by way of judicial review of the Fees Order. In a Judgment handed down in February 2014, the High Court rejected Unison’s claims principally on the basis that they were premature but left the door open for the Union to bring a further claim in the future if a clearer evidence base emerged.

Statistics were collated which showed a large fall in ET claims following the introduction of the Fees Order. Unison brought a further judicial review challenge. It argued that the fees breached the European Union principles of effectiveness and equivalence; led to indirect discrimination and the Government had not complied with its public sector equality duty. The claim was rejected by the High Court and Unison appealed to the Court of Appeal.

On the issue of effectiveness and equivalence, the Court of Appeal held that the statistics showed the introduction of fees had deterred a very high number of potential claimants but they did not prove that any individual found it impossible to bring a claim. In relation to indirect discrimination, it was held that there was a disparity between the number of women who brought ‘Type B’ claims, compared to those who brought ‘Type A’ claims but this was objectively justified. The Court held that disparate effect had not otherwise been established and/or was objectively justified. With regard to the argument that there had been a failure to comply with the public sector equality duty, the Court of Appeal held that the Equality Impact Assessment (EIA) undertaken by the Lord Chancellor was adequate and it could not be said that the impact of the Fees Order had been ignored. Accordingly, Unison’s appeal was dismissed.

Those involved in Employment Law will await with interest the Lord Chancellor’s forthcoming review of the Fees Order.

The transcript is available to view at Bailii, please click here.

This article was wirtten by No5 Employment Group Barrister, Tim Sheppard