The Court of Appeal has dismissed Unison’s appeals against the judicial review application challenging the legality of employment tribunal fees. Again, as seems to be a theme in the litigation, the Court agreed that Unison had not provided enough evidence to establish that the fees regime reached the EU law principle of effectiveness. The statistics did not show that any individual had been prevented from pursuing a claim in respect of an EU derived employment right.
It also found that the fees regime was not indirectly discriminatory against women. The Court agreed with the High Court in both respects. The Court of Appeal also concluded that it was objectively justifiable to have a two tier fee system. This was notwithstanding, the fact that a larger number of women than men may be obliged to pay the higher rate fees which apply to discrimination claims, there was a greater demand in respect of such claims on tribunal resources. The hearings for discrimination cases are generally longer and more complex, involving the use of members.
Unison have said that they will apply for leave to appeal to the Supreme Court. In the meantime, there are two reviews of employment tribunals underway. It will be interesting to see whether the introduction of fees is found to have the effect of deterring a large number of potential complainants, as well as making it impossible for certain individuals to bring a claim. We, of course, have statistics to prove the former, but it is the latter that Unison are trying to enforce in the Courts. We can expect the outcome of the reviews later this year.
In a separate, but connected, matter, Scotland has confirmed in the “A Stronger Scotland: The Government’s Programme for Scotland 2015-2016” that it will abolish employment tribunal fees to ensure that employees have a fair opportunity to have their case heard. It will, therefore, be very interesting if we have two different systems, one in England and one in Scotland.