Challenge to Employment Fees Unsuccessful

17TH DECEMBER 2014

R (On the Application of Unison (No 2)) v The Lord Chancellor (Equality and Human Rights Commission intervening) [2014] EWHC 4198 (Admin)

Unison were today unsuccessful in their application to judicially review the decision to introduce fees in employment tribunals. The High Court rejected the second challenge to the fees and dismissed the Union’s contention that the fees were unlawful.

The first argument made by Unison was that the fees were unlawful because they infringed the principle of effectiveness, making it virtually impossible or excessively difficult to exercise rights conferred by EU law. Although Lord Justice Elias accepted that there may well be cases where genuinely pressing claims on a worker’s income would leave too little available to fund litigation, there was no actual evidence before the High Court that any individual had even asserted that he or she was unable to bring a claim because of cost, rather than being unwilling to do so.

The second argument was that the higher fees for type B claims amounted to indirect sex discrimination.  It was argued that those subject to the type B fees were disproportionately female than those paying type A fees. The High Court held that the difference in fees was justifiable as type A claims generally took less time and used fewer resources. Further, it was submitted that the higher fees amounted to discrimination against those bringing discrimination claims, of which the greater proportion were women. The High Court disagreed, concluding that the appropriate pool for consideration was all those who have to pay type B fees. Nor was the High Court satisfied that the statistics relied upon were reliable and held that the claimant had not discharged the burden to show that there had been discrimination in any event.

The silver lining is that permission to appeal was granted to the Court of Appeal, and the door was left open for a challenge in a future case based on actual evidence of an individual being unable to proceed before an employment tribunal because of a lack of funds.

Gillian Crew