New employment tribunal fees and discrimination: UNISON v Lord Chancellor; Equality and Human Rights Commission
The High Court (Moses LJ, Irwin J) today delivered judgment in the important judicial review proceedings brought by UNISON to challenge the fees regime introduced in the employment tribunal and EAT. The Court rejected the application but its judgment is interesting for what it says about the effect of fees and for the possibility of a future challenge. In summary
1. The judgment refers to errors in the guidance on the fees and the indication from the Lord Chancellor, given in the course of the hearing, that there will now be a presumption that a successful claimant recovers fees (para 15). The rules may be amended in due course.
2. The Court rejected the claim that the Fees Order breached the EU principle of effectiveness but principally on the basis that there was as yet no sufficient evidence on this. It noted that the dramatic fall in claims “may turn out to be powerful evidence to show that the principle of effectiveness, in the fundamentally important realm of discrimination, is being breached by the present regime” (para. 46). The Court referred to the difficulties of proof in discrimination, now exacerbated by the future abolition of the questionnaire procedure, saying that it would expect tribunals to encourage a full exchange of information before the payment of a hearing fee is due. It also noted the low median awards for discrimination and a recent BIS Study in 2013, which concluded there is an even chance individuals who are successful receive payment of their award. Thus (para 29):
The evidence amply supports the conclusion that the ability to bring discrimination cases is a vital plank in the means of combating discrimination, but the outcome of bringing claims is difficult to predict and the rewards are small, with an even chance of failing successfully to enforce them.
Despite that, and evidence of the dramatic fall in tribunal claims (about 80% drop on the latest figures), the Court concluded that the hypothetical examples of claimants proposed by UNISON were not yet sufficient to show the principle had been breached.
3. The Court did not consider there was a breach of the principle of equivalence, in particular, because now that the Lord Chancellor had agreed that a successful claimant should recover his or her fees, it could not be said that the regime was less favourable than comparable County Court claims. Nor was it persuaded that the evidence showed that the public sector equality duty was breached, though it said there may be substance in the argument that the proposals failed properly to take account of the impact on women of bringing discrimination claims (para. 66).
4. The final ground was whether the regime was indirectly discriminatory. Faced with limited evidence on the effect to date and the dispute about it, the Court ultimately decided it could not determine whether there was disparate impact. But after referring to data showing the relatively low income of women and people from ethnic minorities, it said it had “a strong suspicion that there will be some disparate impact on those who fall within a protected class” (para. 84).
5. On that basis the Court considered objective justification. Both UNISON and the EHRC argued that the imposition of fees on claimants alone could not meet this test, particularly in the context of the low level of awards and the “woefully inadequate enforcement system” (para 87). But in the absence of more compelling evidence as to the disparate impact, the Court considered it could not yet determine whether the regime was discriminatory. It made clear, however, that this matter the Lord Chancellor owed a duty to keep the matter under review and to take remedial measures if it is revealed to have a discriminatory effect (para 89).