When does the difficult become the impossible?
R (Unison) v The Lord Chancellor (the Equality and Human Rights Commission intervening)  EWCA Civ 935
The Court of Appeal has dismissed both of Unison’s appeals against the findings of the two Divisional Courts which rejected Unison’s judicial review applications challenging the Lord Chancellor’s decision to make the Employment Tribunal and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/893) – “the Fees Order”.
There were three challenges to the Fees Order before the Court of Appeal:
Breach of the Effectiveness Principle
The Court of Appeal (per Underhill LJ giving the leading judgment) held that the Fees Order would be unlawful if its “provisions inherently create a real risk that some claimants will be denied access to justice because they cannot realistically afford the fees” (para 52). Underhill LJ later phrased it as “The question is whether the introduction of the fees regime has in at least some cases made it not simply unattractive but in practice impossible to pursue a claim” (para 67).
However, the CA was not satisfied on the basis of the evidence before it that that was the case.
Despite accepting that the impact of fees on the number of ET claims had been “dramatic” (para 62) and that, like both Divisional Courts, Underhill LJ professed to having “a strong suspicion that so large a decline is unlikely to be accounted for entirely by cases of “wont’ pay” and that it must also reflect at least some cases of “can’t pay””, the Court of appeal was not prepared, whilst expressly tempted, to accept Unison’s submissions that the figures “speak for themselves” (Para 68).
Unlike the Divisional Courts that had ruled that evidence could not be provided by notional individuals but only by evidence of actual potential claimants who have been unable to pay the fees, the Court of Appeal was prepared to accept that in principle well-constructed cases of notional individuals could be used to assist in proving that fees would be realistically unaffordable for at least some typical claimants (para 69). However, the Court of Appeal was not prepared definitively to endorse the conclusion that fees were realistically unaffordable due to the lack of argument that they had heard about the figures put forward (para 71).
However, the Court of Appeal went on to hold that, even if it had been sufficiently proved that at least some individuals cannot realistically afford to pay the fees on the basis of the current criteria, then they might be able to obtain remission by establishing “exceptional circumstances” which in the view of the Court of Appeal should be judged widely, in order to ensure that all those who cannot realistically afford to pay the full fees are entitled to remission (para 73).
As such the Court of Appeal was not satisfied that it had been proved that the Fees Order breaches the principle of effectiveness (para 75).
The Court of Appeal did not accept that there had been any flaw in the reasoning of the Divisional Court as to the charging of higher fees for type B claims in which the Division Court accepted that higher fees could be charged the basis that they generally took up more tribunal resources (para 96). Similarly the Court of Appeal rejected an argument based on indirect discrimination against women on the basis that, whilst women were statistically more likely than men to bring sex discrimination claims, type B claims included not just sex discrimination cases and indeed not just discrimination claims generally (para 101). Similarly the Court of Appeal rejected an argument that the Divisional Court had been wrong to accept that statistics put forward by the Lord Chancellor did not justify a finding that there had been a disparate impact on female claimants (para 107).
As such Unison’s appeal relating to indirect discrimination did not succeed.
Public Sector Equality Duty Challenge
The Court of Appeal also rejected Unisons challenge based upon the public sector equality duty on the basis that: the Equality Impact Assessment did not ignore the possibility of a differential impact on women (para 117); that the prediction of the number of claimants who would qualify for remission was wrong was not a sufficient basis for a finding of a breach of the duty (para 118); that it did not matter that the Lord Chancellor had not consulted on the principle of introducing fees but only about how the scheme would work (para 119); that the failure to consider the level of fees v awards or the difficulties relating to recovery was not of such a fundamental character so as to vitiate the Equality Impact Assessment (para 120); the failure to ask for evidence of the likely impact on different protected groups was not a breach given the difficulties of predicting such an impact with any reliability (para 121); the “unfounded assumption” that women were not in equal receipt of household income did not vitiate the Equality Impact Assessment (para 122); and that the Lord Chancellor did fail to have due regard to the issue of the deterrent effect of fees, even if the events proved him wrong (para 123).
Unison has announced that it will seek permission to appeal to the Supreme Court.
Michael Ford QC of Old Square Chambers provided written submissions on behalf of the Equality and Human Rights Commission.
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