In The Queen on the Application of Unison v Lord Chancellor, the High Court (HC) dismissed all four grounds of UNISON’s challenge to the legality of the tribunal fee system.

Ground 1: Fees contravene the principle of effectiveness by making it virtually impossible, or excessively difficult, to exercise rights conferred by EU law. Taking into account the remission system in place for those who could not pay any, or part, of the fees and the timing of when fees had to be made, the HC ruled there was sufficient opportunity, even for those with modest means, to pay fees. Any argument to the contrary was premature, since more evidence was needed about how the system actually operated in practice

Ground 2: Fee levels make it more difficult to enforce EU rights than domestic rights in similar actions so the principle of equivalence is violated. Using a breach of contract claim for £20,000 in the County Court (CC) as an example, the key difference was potential liability for costs. The possibility of an unsuccessful party having to pay costs in the CC was a real disincentive to claimants of limited means compared to the regime applying in tribunals. Given that free Acas pre-conciliation will be available from April 2014, which is not available in the CC, and the Lord Chancellor now agrees that a successful Claimant should expect to recover the fees, equivalence is not breached.

Ground 3: The Government acted in breach of the Public Sector Equality Duty as no proper impact assessment had taken place on any potential adverse impact. The HC noted the steps Lord Chancellor had taken to comply with the Public Sector Equality Duty and rejected the argument that the Duty had not been complied with. In any event, the Duty continues and the Lord Chancellor must assess the impact of fees on the basis of evidence.

Ground 4: Fees are indirectly discriminatory because they have a disproportionate adverse impact on women. The HC accepted that more women were likely to bring Type B claims (which include discrimination), which have a higher fees level. But although the HC also accepted that women earn less than men, it could not assess who would be disadvantaged by not qualifying for fee remission. As the extent of any disadvantage could not be established, which is a necessary element of judging objective justification, the HC was unable to reach a conclusion as to whether Type B higher fee rates can be objectively justified if they are indirectly discriminatory.

UNISON will be appealing the decision, but the HC did indicate it would be possible to launch another application for review if the statistics show later on down-the-line that the fee regime is having an unequal effect.

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