Access to justice in the ET

Last month UNISON lost the latest stage of its judicial review challenge in relation to employment tribunal fees. Susan Belgrave examines the ruling.

The employment community has been generally surprised and disappointed by the outcome of the judicial review challenge by UNISON to the imposition of employment tribunal fees in July 2013. Lord Justice Elias gave the leading judgment of the court in December 2014 and in a nutshell the court concluded that while there was clear evidence of a dramatic drop in the number of claims being brought to the tribunal the evidence presented by the trade union did not include instances of actual people who had been deterred from bringing their claims. On this basis it was concluded that the claim failed.

The High Court’s reasoning seems deeply flawed and it is understood that UNISON will be appealing the ruling. What are the prospects for an appeal and just how necessary is evidence of named individuals that they were actually deterred?

The case mounted by UNISON was essentially a two-pronged attack on the implementation of the fees regime. They argued that the decision by the coalition government was contrary to the principle of effectiveness in European law and was indirectly discriminatory. The principle of effectiveness in European law  means that an individual must be able to access their rights before the courts. The hurdles, administrative or otherwise, placed in their way should not make it virtually impossible to exercise that right and thus in effect deny them access to justice. The claim for indirect discrimination centred around the argument that the scheme has a discriminatory impact on women, ethnic minorities and disabled and this disadvantageous effect was no justified.

This was, of course, the second claim brought by UNISON: the first had been dismissed by the Divisional court on the basis that it was premature and there was insufficient evidence on both sides to enable them to reach a decision on the likely impact of the fee regime.

Although the court was faced with the government’s own statistics to the effect that there had been close to an 80% drop in employment tribunal claims the court was not persuaded that this meant that claimants were unable to pay the fees rather than simply unwilling to pay the fees. Elias LJ said:

"60. I suspect that there may well be cases where genuinely pressing claims on a worker’s income will leave too little available to fund litigation. But the difficulty with the way the argument has been advanced is that the court has no evidence at all that any individual has even asserted that he or she has been unable to bring a claim because of cost. The figures demonstrate incontrovertibly that the fees have had a marked effect on the willingness of workers to bring a claim but they do not prove that any of them are unable, as opposed to unwilling, to do so.

61. The question many potential claimants have to ask themselves is how to prioritise their spending: what priority should they give to paying the fees in a possible legal claim as against many competing and pressing demands on their finances? And at what point can the court say that there is in substance no choice at all?"

The court deplored the absence of evidence about real potential claimants who had actually been deterred from bringing bona fide strong claims against their employers because of the new fee regime.

This begs the question: how many potential claimants would have satisfied the court – 50, 100, 1000?  Given the size of the working population, what number would have proved sufficiently compelling to show more than a mere de minimis interference with the right of access to justice?

The court was suggesting that such individual’s household income and expenditure would be scrutinised to show that they were actually unable to afford to bring a claim rather than simply being unwilling to do so. Presumably counsel for the Lord Chancellor would have been able to posit or cross examine on the basis that with better organisation of the family’s finances the potential claimant would have indeed have been able to afford the fees. This seems an impossibly high evidential burden which was being placed on the claimants combined with a certain degree of judicial reluctance to see the obvious.

It is strange to conclude that the reason for an 80% drop in claims is that people are seeking to settle claims, or have very weak claims or indeed would rather spend their money on rather more important things than sue their employer. There are few claims/rights more important than those engaged in the workplace. Holding a job allows an individual to pay their way in the world and look after themselves and their family. Losing a job can lead to financial ruin and family breakup during the time that worker seeks to find another way to pay their bills. At such a time with scarce resources some may prioritise food over employment tribunal claims.

While the court understandably may not wish to enter the realm of unpicking social and economic policy the reasoning seems unconvincing. The government of the day is entitled to introduce a fee regime for legitimate reasons but the question is whether the fees are pitched at a level which is reasonable or prohibitive. The government’s own figures tend to support the latter interpretation.

In relation to the second limb, the claim that the fees were indirectly discriminatory, the court’s reasoning is equally opaque. The fees regime introduces two levels of fees – type A, more straightforward claims such as Wages Act claims and unfair dismissal and type B claims which cover mainly discrimination claims and cases which are more complex.

UNISON, supported by the Equality & Human Rights Commission intervening, argued that the level of fees imposed for type B cases meant that women and minorities were disproportionately affected by the regime and less likely to be able to bring their claims. While discrimination claims affect a number of protected characteristics, the challenge focused particularly on sex discrimination and the fact that many more women than men will be disproportionately affected by the higher fees imposed on these types of cases.

The court concluded that UNISON were in fact selecting artificially a pool which skewed the results as possibly more men were in the type A pool and equally the statistics did not in fact show disproportionate impact. The cases cited in terms of using a wider pool seemed distinguishable from the instant case as surely using a protected characteristic, namely sex, rather than race or disability, or indeed any other was a legitimate approach to illustrate the point being made rather than being deliberately selective in the presentation of the evidence.

There is a difficult balance to be struck in terms of managing the rights of employers and of workers and considering where costs and burdens should fall. There is similarly a difficult balance to be struck between the role of Parliament in pushing through social and economic policy in keeping with its mandate from the electorate and the role of the Court is not entering the arena and seeking to unravel policy for the sake of it.

While judges must be mindful of this dilemma one fears that primacy in this decision was given to the policy choices made by the government which the courts were reluctant to overturn. It may be that if there is to be a change in the regime it will have to be effected by the ballot box rather than the courts.

Susan Belgrave is a barrister at Seven Bedford Row. She can be contacted by email.