The Tribunal's fees saga continues
One of the UK's largest trade unions, Unison, has been unsuccessful once again in challenging the legality of Employment Tribunal fees. The Court of Appeal dismissed the appeals regarding Unison's judicial review applications to the High Court and put to bed, for now at least, the possibility of the Fees Order 2013 being deemed unlawful.
The considerations of the court
A key feature of the High Court's dismissal of Unison's claims was the lack of evidence regarding the likely impact of the fees on individuals taking claims to tribunals and this obstacle remained insurmountable for Unison at appeal level. On appeal, Unison raised 4 grounds of challenge focusing on the direct impact on individuals, particularly individuals with certain characteristics, in their access to justice. The court was also asked to consider whether the fees measures were discriminatory, either indirectly or a breach of the Lord Chancellor's public sector equality duty, and impacted the effectiveness of remedies available to individuals.
These legal arguments were largely submerged in the practicalities of assessing the relatively new fee structure, as the Court of Appeal was forced to consider a number of notional individuals and ask how exactly the two-tiered fee system would affect them. This unscientific task was necessitated by the paucity of tangible statistical evidence available to the court; evidence that was needed to illustrate the real impact of the fees.
In dismissing the appeal, the Court of Appeal suggested that a decline in the number of claims being brought was not in itself an indication of a decline in access to justice for employees. New measures, such as the mandatory requirement for ACAS early conciliation before proceeding to tribunal which came into force on May 6th 2014, could be equally likely causes of the decline and in the absence of empirical evidence to the contrary the court was clearly reluctant to deem a relatively new scheme unlawful before its proper impact could be measured. All of Unison's arguments were consequently dismissed.
No doubt this will come as a severe blow to unions and employee organisations that cite the fees as an obstacle to justice, and, as a result of this, a threat to fair and equal workplaces. Yet the tone of the Court of Appeal was one of criticism against Unison for bringing the claim before definite conclusions can be reached. Despite this, Unison has indicated that it intends to seek permission to appeal this decision but it remains difficult to see how an appeal would achieve a different result without there being a material change in the facts presented in evidence. As more time passes, the government is obliged to continually monitor how access to justice is being affected and if evidence begins to mount up to support similar claims to those made by Unison here, expect to see further legal challenges.
This could be assisted by the fact that the Scottish Government has announced its intention to abolish tribunal fees. Whilst we are not sure when exactly this is to happen, if we then see a dramatic increase in the number of tribunal claims being brought in Scotland following the abolition of fees, this could provide the evidence and statistical information that the Court of Appeal held was lacking.
For more information, speak to our employment team.