News that Unison has applied for Judicial Review of the Government’s controversial plans to introduce fees in the Employment Tribunal has gone viral in the Labour Law community. A key theme in the application is access to justice for working people, particularly women.
Unison has described the proposed fees of up to£1000 for individuals to bring a claim and have that claim determined in the Employment Tribunals as ”brutal”.
In summary, the basis of the legal argument is four-fold:
- The fees make it difficult, to the point of impossibility, to enforce workers’ rights under European Community law.
- There are no fees for enforcing domestic rights at a First Tier Tribunal – which is at a similar level to the Employment Tribunals – so the proposed fees offend against the principle of equivalence.
- There was no adequate assessment of the proposed fees system by the Government in accordance with the Government’s Public Sector Equality Duty (introduced by the previous Labour Government).
- The fees are indirectly discriminatory; that is although apparently neutral in expression or written form, the effect in practice would place women at a particular disadvantage, including in the application of the scheme for the partial remission of the fees.
Previous challenges to procedural bars in the Employment Tribunals
This latest application by Unison is not the first time that there has been an application for Judicial Review of procedural bars in the Employment Tribunal. For example, the increase in the service requirement or qualifying period in order to claim unfair dismissal was challenged by Mrs Seymour-Smith and female putative claimants for unfair dismissal. The application for judicial review resulted in a series of hearings and appeals (including before the ECJ) and culminated in the House of Lords finding that the increase to the qualifying period was indirectly discriminatory against women but could be justified as a proportionate means of achieving a legitimate aim: see R. –v- Secretary of State for Employment Ex p. Seymour-Smith (No.2).
Although strictly a narrow question was under consideration in Seymour-Smith, the approach adopted in that case may suggest significant obstacles to Unison’s indirect discrimination challenge to the proposed fees. The question remains whether the other elements to the application for Judicial Review will tip the balance in Unison’s favour.
Why not a greater Union challenge?
Unison’s uncompromising language – describing the potential impact of the fees as ”brutal” – (see Unison press release) does raise the question of why the union response up to date has been so muted? Although the TUC has been formally opposed (see this early article in the Guardian Newspaper), there has not been the union opposition that might have been anticipated by the Government.
It should be noted that many unions and the TUC (see TUC Report ‘Priced Out’) put in consultations opposed to the fees system. However, Unison had also published details of a ‘loan’ scheme to enable members to pay the fees even before applying for partial remission: see Unison release on loan scheme.
A traditional challenge for unions has always been whether union membership involves an implied promise by the union to fund Employment Tribunal claims for members and many unions have developed quite rigorous and conservative funding criteria to ensure only viable claims are pursued.
Initially, many unions viewed the requirement to pay fees in the Employment Tribunal as a potential benefit that unions could provide for their members. However, it is perhaps only after the Government put in place the machinery for the payment of the scheme, that unions are appreciating the full financial impact that such a promise to union members might cost unions. Putting up union subscription rates in a recessionary climate is not attractive to even large unions such as Unison.
Lauren Godfrey is a barrister at Crown Office Row Brighton
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