On 7 February the High Court published its judgment following a hearing last October and Noovember and confirming its rejection of Unison’s challenge to employment tribunal fees in Unison, R (on the application of) v The Lord Chancellor & Anor. Put simply, the overall outcome was that the Court considered that it was too soon to tell what the impact of the introduction of fees would be and so the case had been brought prematurely.
The challenge was fourfold:
- 1. The obligation to pay a fee made it excessively difficult to enforce EU law rights such as equal pay. In the absence of concrete evidence that this is in fact the case, it was too soon to say, in the Court’s view.
- 2. The fee levels were not equivalent to those in other courts. This was rejected for a number of reasons, including that in the county court, where fees may be lower, there is more of a risk of having to pay the other side’s costs, and the option of free conciliation is not available.
- 3. The Public Sector Equality Duty had not been complied with. This argument also failed – these proceedings were the wrong way to make the challenge. Moreover, it was too soon to see whether fears that the elimination of discrimination would be held back were well-founded.
- 4. Fees are indirectly discriminatory, having a bigger impact on, for example women. Recognising that generally speaking women tend, still, to be paid less than men, and so would find it harder to find the money to pay fees, it was still too early to say.
However Unison could still garner some hope from the decision:
- – The Lord Chancellor appeared to accept that as a general rule, successful claimants should recover any fees they have paid from a losing employer. The fly in that particular ointment is the poor recovery rate in tribunals – what are the chances of recovering fees when many employers never pay any part of the compensation that they have been ordered to pay?
- – It was made plain that if and when evidence emerges that the fee regime has had, for example a discriminatory impact, then The Lord Chancellor will not be able to argue that Unison have left it too late to bring a claim.
The Court had plenty to say about the haste with which the case had been brought and was clearly underwhelmed by the standard of preparation. For example, the time estimates for the case were inadequate, adjournments were necessary to deal with new material, new documents and arguments cropped right up to the end of the hearing and over a hundred authorities were produced, most of which were never looked at.
In addition the timing of the case turned out to be most unfortunate. The Court sat on 22 and 23 October and 4 November. On 18 October the Government published details of new employment tribunal claims brought between July and September 2013. The information was referred to in the judgment but rather airily dismissed.