Today, I'm pondering the potential ramifications of next week's hearing in Unison's judicial review proceedings against the Government's decision to introduce fees for people wishing to bring a claim in the Employment Tribunal.
I'm frequently being asked to explain what's going on here, and importantly, how the Government can be challenged and overruled when they (many think) make the law in the first place! In fact it is Parliament that makes the law, which includes the party/parties in Government but also the elected MPs of other parties.
In this piece, I'm offering a brief potted history of the challenges to the fee system and why they even stand a chance, when our Government may be perceived as having ultimate legal authority to those who have not studied the intricacies of public law.
The introduction of Employment Tribunal Fees
Employment Tribunal fees came into force in July 2013. Whilst the Government consulted on 2 options for the intended regime, the decision to charge fees had already been made in 2011, without substantive consultation.
Before fees came into force, separate judicial review proceedings were instigated in Scotland (by Fox & Partners) and England & Wales (by Unison). As either challenge would, if successful, have affected the fee regime across the whole of Great Britain, the Scottish proceedings were "paused" ("sisted" being the technical term).
"Judicial review is a form of court proceeding, usually in the Administrative Court, in which the judge reviews the lawfulness of a decision or action, or a failure to act, by a public body exercising a public function. It is only available where there is no other effective means of challenge."
So says the charity, Public Law Project, in their introductory guide to Judicial Review.
Expensive and difficult to run, judicial review cases are relatively rare - but they can be successful. This is because, in simple terms, the role of the judiciary is separate to and independent of Parliament and the Government, and is allowed to overrule them if fundamental legal principles have been offended.
The story so far
The Unison proceedings were heard in October 2013. The judge concluded that it was too early to say whether tribunal fees were having the effect claimed by Unison; broadly speaking that (in my words):
- Tribunal fees restrict access to justice; and/or
- The higher fees to bring discrimination and equal pay claims have a disproportionate impact on women who are statistically more likely to earn less than men
As the decline in tribunal claims continued, Unison regrouped, and appealed the original decision to the Court of Appeal. The response from that court was that the appropriate route would be to launch a fresh challenge back in the High Court using the additional statistical evidence generated from the passage of time since the first hearing.
That's what has happened and the case will be heard next Tuesday (21st) and Wednesday (22nd October).
Employment law commentator, Richard Dunstan recently published his analysis of the decline in graph form.
The statistical evidence is so dramatic, that it is difficult to see how the (roughly) 80% overall drop in tribunal claims can be explained away on lawful grounds. In particular when the greatest decline is in equal pay cases (almost always brought by women), and our Government is subject to the fundamental legal principle that it will not put in place rules, regulations or other measures that disproportionately affect one gender without good cause and in a proportionate way.
We will keep you posted on the outcome of the Unison challenge.
UPDATE....17th December 2014....UPDATE
We have this morning heard that the High Court have ruled against Unison and allowed the Employment Tribunal fee regime to remain in its present form.
We will keep you updated on any futher developments, for example any appeal by Unison of the judgment.