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Unison (no 2) v Lord Chancellor and EHRC

This week Susan Chan of 42BR has appeared for the Lord Chancellor in the second judicial review challenge to the employment tribunal fees system brought by the union Unison. A year ago Susan successfully defended the tribunal fees scheme against Unison’s first challenge, which was backed by the Equality and Human Rights Commission (EHRC): http://www.bailii.org/ew/cases/EWHC/Admin/2014/218.html Unison subsequently appealed against the Divisional Court’s (Moses LJ and Irwin J) dismissal of the first claim. The Court of Appeal has stayed the appeal pending resolution of this second judicial review claim.

In this challenge, Unison and the EHRC have put forward two grounds:

  • EU principle of effectiveness: that procedural rules should not make the enforcement of EU-protected rights virtually impossible or excessively difficult. It is said that fees infringe this principle;
  • Indirect discrimination: that the imposition of fees is indirectly discriminatory to protected characteristic groups such as women, who are less able to afford fees than men.

On Ground 1, Unison rely particularly on the significant drop in the number of tribunal claims lodged since fees were introduced on 29 July 2013 (eg. 76% drop in October-December 2013 quarter compared with same quarter of 2012, or 64% reduction if ‘multiple’ claim cases are excluded) to support their argument that the EU principle of effectiveness is being breached. They argue that the sharp drop in claims shows that people are being deterred by fees from bringing claims. The Lord Chancellor’s response is that ‘deterrence’ is not the same as people not having an ‘effective remedy’. The fact that people may choose not to bring a claim because they have to pay for something which was previously free, does not mean that there is no effective remedy to enforce EU rights. A breach could only potentially be made out by reference to the circumstances of a specific individual who gave evidence that they were unable to afford the applicable fee, as opposed to simply making a choice not to bring their claim. Furthermore, the Divisional Court in Unison (no 1) v Lord Chancellor had considered the circumstances of 8 hypothetical claimants on low incomes put forward by Unison and had concluded that taking into account remission, albeit it would be expensive, such claimants would still be able to afford the fees.

Fees are set at two levels – Type A and Type B. On the indirect discrimination ground (Ground 2), the parties have focused on whether the higher Type B fee has disproportionately more impact on women than men. The Court has been considering evidence on the relative proportions of women/men who would need to pay the Type B fee, compared with the proportions of women/ men who make up all employment tribunal claimants; alternatively the proportions of women/men who make up the UK labour workforce and might bring a tribunal claim. If fees are shown to have a disparate impact on women, then justification of the disparity would fall to be considered.

The Divisional Court (Elias LJ and Foskett J) has reserved judgment.


23.10.2014