In R (on the application of Unison No 2) v Lord Chancellor, the High Court (HC) has rejected for a second time Unison’s argument that the fee charging scheme operating in the tribunal system is unlawful. On this occasion Unison challenged the fee scheme on two grounds:

It infringes the EU principle of effectiveness because the cost of fees makes it virtually impossible or extremely difficult for a significant number of potential applicants to bring a claim and so they had no effective remedy if their employment rights are contravened.

The scheme operates in an indirectly discriminatory way with respect to women, ethnic minorities and the disabled, and the Lord Chancellor has failed to establish that the disadvantageous treatment meted out to these groups is justified.

Principle of effectiveness: While the HC accepted that the tribunal statistics showed a ‘dramatic’ reduction in claims and fees have had a significant effect on the willingness to bring claims (see further figures for July to September 2014 below), the statistics alone were insufficient in themselves to establish that it was virtually impossible or at least exceptionally difficult for potential claimants to enforce their employment rights. The HC could only properly test Unison’s argument if examples of actual cases were provided enabling the court to review the income and expenditure of a particular individual or individuals and apply the effectiveness principle in that specific situation.

 Indirect discrimination: The HC found that the Government had shown three legitimate aims, i.e.

– Transfer part of the annual cost of running Tribunals to those who use them and who can afford it (the HC considered that this could not be described purely as a ‘cost saving’);

– Make tribunals more efficient and effective, including removing unmeritorious claims; and

– Encourage mediation rather than litigation.

Given the objectives, then when looking at the scheme overall, the method chosen to achieve them was proportionate as the arrangements relieved the poorest from the obligation to pay and the fees are normally recoverable, if the claim succeeds.

Unison has been granted permission to appeal and intends to do so.

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