As discussed previously on the Blog, fees in the employment tribunal were introduced across England, Wales and Scotland in July 2013, requiring a claimant to pay fees when presenting a claim and before a hearing. The figures accepted by the Court of Appeal in its recent judgment on the judicial review brought by UNISON, which compared claims over nine-month periods before and after the introduction of fees, showed an overall decline of about 80% in the claims presented. The limited evidence available, based on Citizens Advice Bureau (CAB) research, suggests unsurprisingly that it is claimants with little resources who are likely not to bring claims, not those with poor claims.

The statistics are just part of the picture. By only accounting for the lodging fees (£160 for ‘Type A’ and £250 for ‘Type B’ claims), they ignore the additional effect of the substantially higher hearing fees, set at £230 for Type A claims and £950 for Type B claims. Other factors, too, make fees an especial deterrent in the tribunal system – the new system under which notice payments and redundancy payments count towards disposable capital for the purpose of ineligibility for remission from fees; the low level of awards for successful claims (see Underhill LJ at §45); the very poor enforcement of tribunal awards; the acknowledged difficulties of proof in discrimination claims; the new requirement to go through pre-claim conciliation before presenting a claim; and so on.

Underhill LJ, who gave the lead judgment in the CA, was clearly troubled by what he described as “startling” statistics, just as were the judges in the two Divisional Courts below. Nonetheless, the CA rejected UNISON’s challenge, supported by the Equality and Human Rights Commission. The statistics showing the drop in claims, coupled with evidence of how fees would affect notional claimants, were not sufficient to show that tribunal fees infringed the EU principle of effectiveness because they did not demonstrate it was “realistically unaffordable” for claimants to bring claims (Underhill LJ at §§67-75). Nor was the fees regime indirectly discriminatory, with women chosen as the relevant group to test this. Even accepting that women brought a disproportionate number of the more expensive Type B claims, the difference in fees was objectively justifiable (Underhill LJ at §§85-96). Finally, the Court rejected the challenge based on the public sector equality duty.

The UNISON case is the latest of several judicial reviews attacking restrictions on access to justice which have mostly failed. One of the problems is how a court should approach statistical evidence. Underhill LJ considered this evidence was not sufficient to show that claimants were realistically unable, rather than simply unwilling, to pay fees. This distinction is hazy, to say the least. What count as needs in a society, and thus what a person can be expected to forego to bring a tribunal claim, are hardly self-evident judgements, as reflected in the contested concepts of measuring poverty. Is a court expected to decide whether it is reasonable for a claimant to give up leisure or sport activities, a television or family celebrations, all of which more than half of the population think are necessities, before bringing a claim?

In addition, the CA’s approach means the exclusive focus is on the level of fees compared with a claimant’s resources, and not on other factors relevant to the deterrent effect of financial payments for bringing claims. It cannot capture, for example, how difficulties of proof in discrimination claims or problems of enforcement are liable to make fees an especially strong deterrent in this context. The statistics, coupled with case histories (such as evidence from CABs), may be better evidence of why fees in practice act as an insurmountable obstacle.

A mirror image problem arises in showing whether the fees regime subjects women to a “particular disadvantage” for the purpose of indirect discrimination. The Commission argued this arose from three factors: the fact that women have a greater need than men to bring sex discrimination claims – a consequence of sex discrimination being asymmetric as a social fact though not in legal form – but are no less exposed to other forms of ill-treatment at work; the higher level of fees for sex discrimination claims (Type B); and the well documented fact that women earn less than men (or share less than half of household income when in a couple), so that they have less money to pay fees. In the absence of statistics outlining the proportions of men and women bringing Type A and Type B claims, the CA relied on the limited statistics available, which tended to dictate the result that, if there were some discrimination, it was only in the higher level of fee, making justification easier to show.

The CA’s judgment demonstrates, however, the difficulty of systemic legal challenges to fees in the tribunal system. The importance of the issue revealed by the statistics cannot be over-stated. With the anomalous exception of the national minimum wage legislation, the enforcement of rights in the employment sphere is almost entirely the responsibility of individual claimants (cf. the enforcement of the Truck Acts by the factory inspectorate in the 19^th Century). If they are unable (or “unwilling”) to bring claims, large questions for the delivery of social goods such as equality, non-discrimination and fairness arise. The Scottish legislature intends to abolish them as a result; the review into their effect in England and Wales has been delayed and delayed. We may now be entering a new paradigm in the history of labour law, in which a huge amount of legislation in the statute book is largely irrelevant in its practical effect – not collective laissez-faire but regulatory laissez-faire.