The High Court has ruled on Unison's judicial review application in relation to the introduction of fees in GB employment tribunals. It has rejected the union's claim that it was virtually impossible or exceptionally difficult for potential applicants to bring a claim - although statistics were produced that show the enormous drop in claims, the union did not bring any witnesses who said they would have taken a claim had it not been for the fees imposed.

Although the union also brought a claim that the imposition of fees was indirectly discriminatory, one of the stated purposes of the fees regime was to make those who used the system pay towards that system, which was a legitimate aim and not one just dependent on a reduction of costs. Indeed, there were other stated reasons and it might be too early to say whether all of the changes have worked, Elias LJ pointing out that:

"The evidence shows that in setting up the fee scheme the government were seeking to achieve three specific and quite distinct objectives: the first was to transfer a proportion (one-third) of the annual cost of running ETs and the EAT to those users who benefit from it and can afford it; second, to make Tribunals more efficient and effective not least by removing unmeritorious claims; and third, to encourage alternative methods of employment dispute resolution so that litigation is not the first resort. This last objective goes hand in hand with the government's promotion of ACAS conciliation which became mandatory for all ET claimants from 6 May 2014. The government considers that it should encourage quicker, cheaper and less emotionally damaging alternatives to the judicial process. 

"Unison submits that none of these objectives can justify the adverse discriminatory impact of the policy. They deny that making workers pay to enforce their rights will facilitate conciliation because employers will know that most employees will not finally pursue their claims and thus there will be no incentive to reach a compromise, or at least not until the fee has been paid. Moreover, they submit that there are other rules available, such as requiring claimants to make a deposit in the case of weak claims, which can be used to discourage weak claims. 

"I do not accept that these aims can be dismissed so readily. As to promoting settlement, there may indeed be some employers who would react in the way Unison claim, but equally many would no doubt prefer to settle a claim early in the proceedings so as not to incur legal costs and the risk of losing a claim for which they would in all probability be liable for the fees. The introduction of compulsory conciliation is very recent and it is as yet too soon to tell how successful this may prove in settling claims. And whilst there are procedures available for deterring weak claims, it is legitimate to believe that the imposition of fees will prove a more effective discouragement."

Unison has been given leave to appeal and has been given huge hints by the court that it had better do so with live witnesses and potential claimants. Foskett J commented:

"As Elias LJ has recorded (at paragraphs 55-56), the effect of the introduction of the new regime has been dramatic. Indeed it has been so dramatic that the intuitive response is that many workers with legitimate matters to raise before an Employment Tribunal must now be deterred from doing so because of the fees that will be demanded of them before any such claim can be advanced. For my part, I would anticipate that if the statistics upon which reliance is placed in support of this application were drilled down to some individual cases, situations would be revealed that showed an inability on the part of some people to proceed before an Employment Tribunal through lack of funds which would not have been the case before the new regime was set in place. However, that assessment has to be seen as speculative until convincing evidence to that effect is uncovered. If it is, of course, the Lord Chancellor would doubtless feel obliged to address it. 

"Elias LJ has referred to the way in which the statistics have been deployed in this application and has identified the fact that no evidence from any individual who has been affected adversely by the new regime (in the sense that it is now virtually impossible or extremely difficult to proceed through lack of funds) has been given: see paragraph 61 above... There can be little doubt that the statistics relied upon in this case raise a legitimate question about the operation of the new regime, but they do not provide the answer to that question... As it seems to me, before the court could begin to act it would need to be satisfied that a more than minimal number of people with arguably legitimate claims would find it virtually impossible or excessively difficult to bring such matters before an Employment Tribunal because of the fees that would require to be paid."
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