Unison has applied for permission to take its legal challenge to the Government’s introduction of employment tribunal fees to the Supreme Court, after the Court of Appeal this week rejected the union’s claims.
In Unison, R (On the Application Of) v The Lord Chancellor  EWCA Civ 935 the union appealed two Divisional Court rulings that the Government’s introduction of the measures had not been unlawful.
Giving the judgment of the Court of Appeal, Lord Justice Underhill said it had not been proved that the fees order implementing the measures breached the principle of effectiveness.
He accepted that it was quite clear from the comparison between the number of claims brought in the Employment Tribunal before and after 29 July 2013 that the introduction of fees had had the effect of deterring a very large number of potential claimants.
“However, that by itself does not evidence or constitute a breach of the effectiveness principle,” he said. “It is inevitable that potential claimants will be more willing to embark on litigation when it is free than when they have to make a payment upfront, which there is no certainty of recovering; and the introduction of fees was accordingly bound to have such an effect. But it is well-established that the charging of court fees is not in itself objectionable.”
Lord Justice Underhill agreed with Lord Justice Elias in an earlier hearing that the question was whether the introduction of the fees regime had in at least some cases made it not simply unattractive but in practice impossible to pursue a claim.
The judge said he had found this part of the case troubling.
“Like both Divisional Courts, I have a strong suspicion that so large a decline is unlikely to be accounted for entirely by cases of ‘won't pay’ and that it must also reflect at least some cases of ‘can't pay’; and I have accordingly been tempted by [counsel for Unison’s] submission that the figures speak for themselves.”
But the judge said that “in the end” he did not think that was legitimate. “The truth is that, looked at coolly, there is simply no safe basis for an untutored intuition about claimant behaviour or therefore for an inference that the decline cannot consist entirely of cases where potential claimants could realistically have afforded to bring proceedings but have made a choice not to.”
Lord Justice Underhill said the difficulty went further than that. “Even if it really were an irresistible inference from the decline in claims that at least some potential claimants could not realistically afford the fees, there is still no basis for forming any reliable view about the numbers of such cases, or how typical they may be; and, for reasons which will appear, that is an important matter.”
The judge said the case based on the overall decline in claims could not succeed by itself. “It needs to be accompanied by evidence of the actual affordability of the fees in the financial circumstances of (typical) individuals. Only evidence of this character will enable the Court to reach a reliable conclusion that that the fees payable under the Order will indeed be realistically unaffordable in some cases.”
Lord Justice Underhill noted that the Lord Chancellor had announced on 11 June a post-implementation review, which would "consider how effective the introduction of fees has been in meeting the original financial and behavioural objectives while maintaining access to justice [the judge’s emphasis]". That such a review would be conducted in due course was something that had been made clear before the Divisional Courts.
“The fact that the evidence put before this Court has not satisfied me that there has been a breach of the effectiveness principle should not, and I am sure will not, preclude the Lord Chancellor from making his own assessment, on the basis of the evidence to which he will have access, on that question,” the judge said.
Lord Justice Underhill added: “The decline in the number of claims in the Tribunals following the introduction of the Fees Order is sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by claimants being realistically unable to afford to bring proceedings the level of fees and/or the remission criteria will need to be revisited.”
The Court of Appeal judge also upheld the rejection by the Divisional Court in Unison 2 of an indirect discrimination challenge, and dismissed Unison’s appeal against the rejection by the Divisional Court in Unison 1 of a public sector equality duty challenge.
Lord Justice Underhill went on to say that the High Court had been right to be reluctant to reach a decision on the effectiveness and discrimination challenges on the material before it.
“It is a strong thing to strike down legislation on the basis of disputed predictions as to its effect when the passage of a comparatively short period of time will prove their correctness or otherwise,” he said.
“In my view it was a proper exercise of the Court's discretion in the present case, given the real difficulties with the quality of the evidence available pre-implementation, to decline to grant any relief.”
Unison General Secretary Dave Prentis said: “[This] decision is a huge disappointment and a major setback for people at work. Many unscrupulous employers will be rubbing their hands together in glee at the news.
“There is stark evidence that workers are being priced out of justice and it is women, the disabled and the low-paid who are being disproportionately punished.
“Our fight for fairness at work and access to justice for all will continue until these unfair and punitive fees are scrapped.”