In February 2014 Unison made an application for judicial review of the employment tribunal fee system. Unison argued that the introduction of the fee system was unlawful on the following grounds:
- fees made it difficult or even impossible for individuals to enforce rights conferred by EU law
- fees were indirectly discriminatory as they would make it more difficult for certain groups in society to bring claims, such as single mothers.
Unison’s application was dismissed because the High Court considered the fee remission scheme provided sufficient opportunity even for families on very modest means to bring a claim, and that there was insufficient evidence to support Unison’s argument for indirect discrimination.
Following the High Court’s judgement, Unison announced that it intended to appeal the decision but the appeal was withdrawn in September 2014 when Unison decided to lodge a fresh application. This was to allow them to make use of the most up-to-date employment tribunal statistics to support its case (the statistics show a significant drop in the number of claims brought since the introduction of fees).
Decision
Unison’s latest challenge to the introduction of fees was on the same basis as their previous application noted above.
On the first point the High Court stated that fees must be for a legitimate aim and there must be a proportionate means of achieving that aim. Therefore, even if it is not excessively difficult to bring a case, an unnecessary hurdle which serves no useful purpose would not be proportionate.
Unison was unsuccessful on this aspect of the claim, not because the High Court found the fees satisfied the proportionality test but rather that Unison had not produced sufficient evidence. Unison relied on the recent employment tribunal statistics which demonstrated a substantial fall in claims. However, they did not produce a single individual who asserted that he or she has been unable to bring a claim because of cost.
In relation to any discriminatory impact of fees, the High Court held the scheme could be justified on the basis that those who used the employment tribunal system contributed to its running, it made the system more efficient, and it encouraged settlement.
Comment
Fraser Auld, an Associate in our employment team, states:
“The decision is a welcome one for employers, however it is unlikely to be the end of the fee saga for two reasons:
- the High Court has given permission to Unison to appeal the decision to the Court of Appeal
- one of the main reasons the claim failed was Unison’s failure to produce any individual who claimed to have been unable to bring a claim because of fees. It is inevitable that in any future challenge Unison will find an individual or individuals amongst their membership who will give evidence on this point.”
