ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Lord Justice Moses and Mr Justice Irwin
 EWHC 218 (Admin)
AND ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Lord Justice Elias and Mr Justice Foskett
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE DAVIS
LORD JUSTICE UNDERHILL
| THE QUEEN (ON THE APPLICATION OF UNISON)
|- and –
|THE LORD CHANCELLOR
|- and -
|EQUALITY AND HUMAN RIGHTS COMMISSION
Mr David Barr QC and Ms Susan Chan (instructed by Government Legal Department) for the Respondent
Mr Michael Ford QC (instructed by Equality and Human Rights Commission) for the Intervener (written submissions only)
Hearing dates: 16 & 17 June 2015
Crown Copyright ©
Lord Justice Underhill :
THE FEES ORDER
The Statutory Basis
The Introduction of the Order
The figures go up by £245 for each additional child. (The annualised equivalents of the figures at the top and bottom of that range – that is, ignoring additional children – are £13,020 and £20,820.) For every £10 of gross monthly income above the specified amount the claimant must pay £5 towards the fee. Thus, by way of example, a single claimant with no children bringing a type B claim would have to pay a full issue fee once their monthly income exceeded £1,545 (annual equivalent £18,540) and a full hearing fee once it exceeded £2,985 (£35,820).
"A fee specified in this Order may be remitted where the Lord Chancellor is satisfied that there are exceptional circumstances which justify doing so."
"If your fee remission application is refused, you may not have to pay a court or tribunal fee if you have suffered an unexpected event, that has seriously affected your ability to pay a court or tribunal fee. If you can prove this circumstance is exceptional, for example, letter or notices threatening legal action due to non payment of bills, the Delivery Manager has the power to grant a full or part remission.
The Delivery Manager is the only person who can make this decision and it is based on the information given to the court or tribunal at the time that the court or tribunal fee is due. The Delivery Manager's decision is final and cannot be appealed.
Examples of exceptional circumstances may be when:
- payment of a fee would mean non-payment of an essential service or utility bill (for example, electricity or gas) that is likely to lead to the service being cut off;
- payment of a fee would mean non-payment of rent or mortgage amounts that are overdue, which could lead to you being made homeless;
- you have personal responsibility for caring for a dependent adult and that care can only be paid for from your own resources;
- you have suffered unexpected and sudden personal and financial loss or expense due to the death of a close family member or dependent relative; or you cannot pay the fee due to uninsured loss or damage to personal belongings as a result of fire, flood, theft or criminal damage."
(1) The discretion is described as applying where payment of the fee "would, owing to the exceptional circumstances of the particular case, involve undue hardship (financial or otherwise) to the applicant". That does not precisely reflect the language of paragraph 16, which does not prescribe a criterion of "undue hardship", but here is a fairly detailed discussion of what might constitute "financial or other hardship". Reference is made to whether payment of the fee "would seriously impact on [the applicant's] day-to-day life" and the same examples are given as in the published guidance.
(2) It is said that "remissions granted under this criterion will be rare".
(3) Contrary to what is said in the published guidance, it is made clear that an adverse decision by a Delivery Manager can be appealed to the Operations Manager. Mr Barr told us the published guidance would be altered to reflect the internal guidance.
The earlier remission regime
Effect of Non-Payment
Recovery of Fees by Successful Parties
(1) Breach of the Principle of Effectiveness. Many of the types of claim over which the ET and the EAT (to which I will refer compendiously as "the Tribunals", except where it is necessary to distinguish) have jurisdiction are derived from EU law. It is Unison's case that the regime introduced by the Fees Order breaches the EU "principle of effectiveness" by making it impossible in practice, or excessively difficult, for claimants to enforce those rights. This challenge was argued in the Divisional Court in both Unison 1 and Unison 2.
(2) Breach of the Principle of Equivalence. It was argued in Unison 1 that the fees payable in respect of claims based on EU-derived rights meant that such claims were subject to a less favourable regime than those based on domestic rights. The point was not re-argued in Unison 2, because it was not affected by the evidence of the impact of the fee regime in its first year of operation.
(3) Indirect Discrimination. The Fees Order is said to be indirectly discriminatory against claimants with particular protected characteristics. This challenge was argued in both Courts below.
(4) The Public Sector Equality Duty. It was argued in Unison 1 that in deciding to make the Fees Order the Lord Chancellor acted in breach of the duty imposed by section 149 of the Equality Act 2010. The point was not re-argued in Unison 2 for the same reason as at (2) above.
(A) BREACH OF THE EFFECTIVENESS PRINCIPLE
"... The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective ... This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial ... It must therefore be ascertained whether Mrs. Airey's appearance before the High Court without the assistance of a lawyer would be effective, in the sense of whether she would be able to present her case properly and satisfactorily."
(1) THE TEST OF AFFORDABILITY
"… provided … that [they] … do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law."
Broadly the same principle is expressed in numerous subsequent cases. However, in some of them the formulation "impossible in practice" is used, and although the two phrases are plainly meant to mean the same thing I think that this is to be preferred, because it more clearly conveys that a realistic approach to assessing "impossibility" is required. It is also more in keeping with the alternative phrase "excessively difficult": that, again, must be intended to mean the same as "virtually impossible/impossible in practice" – otherwise the latter phrase would render the former redundant – but the word "excessively" recognises that judgments of degree are required.
"61. Article 6.1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way, that provision embodies the "right to a court", of which the right of access, that is the right to institute proceedings before a court in civil matters, constitutes one aspect only; however, it is an aspect that makes it in fact possible to benefit from the further guarantees laid down in paragraph 1 of Article 6 (see, among many other authorities, Golder v. United Kingdom, judgment of 21 January 1975, Series A no. 18, pp. 16-18, paras. 34 in fine and 35-36, and Kreuz (no. 1) ... (paras. 52 et seq.)
62. The "right to a court" is not absolute. It may be subject to limitations permitted by implication because the right of access by its very nature calls for regulation by the State. Guaranteeing to litigants an effective right of access to courts for the determination of their "civil rights and obligations", Article 6 § 1 leaves to the State a free choice of the means to be used towards this end but, while the Contracting States enjoy a certain margin of appreciation in that respect, the ultimate decision as to the observance of the Convention's requirements rests with the Court.
63. The Court has accepted that in some cases, especially where the limitations in question related to the conditions of admissibility of an appeal, or where the interests of justice required that the applicant, in connection with his appeal, provide security for costs to be incurred by the other party to the proceedings, various limitations, including financial ones, may be placed on his or her access to a "court" or "tribunal". However, such limitations must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved ...
64. The requirement to pay fees to civil courts in connection with claims, or appeals, they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6.1 of the Convention. However, the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant's ability to pay them, and the phase of the proceedings at which that restriction has been imposed are factors which are material in determining whether or not a person enjoyed his right of access and had "a ... hearing by [a] tribunal" (see Kreuz (no. 1) and Tolstoy-Miloslavsky v United Kingdom [(1995) 20 EHRR 442)]."
It went on to apply those principles to the facts of the case. It observed that the situation was not comparable to the case of security for costs (which was the subject of Tolstoy-Miloslavsky), because court fees had nothing to do with the protection of the other party or the merits of the claim but were purely concerned to raise revenue for the state (see para. 66). It said that in such a case whether they constituted a restriction "should be subjected to a particularly rigorous scrutiny from the point of view of the interests of justice" (para. 65). It then pointed out that the company had by that date had all its assets attached by creditors and all its bank accounts frozen, so that it could plainly pay nothing from its own resources (see para. 67), and the real questions were whether the Polish court was entitled to take the view that it should have put money aside in the past to fund the litigation and whether it was material that Mr Podbielski had been able to pay a similar court fee two years later. After discussing those questions it said, at para. 69:
"In the circumstances and having regard to the prominent place held by the right to a court in a democratic society, the Court considers that the judicial authorities failed to secure a proper balance between, on the one hand, the interest of the State in collecting court fees for dealing with claims and, on the other hand, the interest of the applicant in vindicating his claim through the courts."
Its overall conclusion, at para. 70, reads:
"The Court therefore concludes that the imposition of the court fees on the applicant constituted a disproportionate restriction on his right of access to a court. There has accordingly been a violation of Article 6.1 of the Convention."
"The fee required from the applicant for proceeding with his action was excessive. It resulted in his desisting from his claim and in his case never being heard by a court. That, in the Court's opinion, impaired the very essence of his right of access."
(a) (unsurprisingly) that it is not objectionable in principle for the state to charge a fee for access to the courts;
(b) that there should be "a proper balance" between the right to charge such a fee and the right of a claimant to bring a claim before the court; and
(c) that the balance will not be properly struck if the fee is "disproportionate".
However, there is no explicit discussion of what judging "proportionality" involves in this context. Reference to the formulation of the classic proportionality test does not help, even if, which I rather doubt, that was what the Court had in mind. It accepted that seeking a contribution from litigants to the cost of the court system was legitimate: the question is at what level the fee ceases to bear, as it put it at para. 62, "a reasonable relationship" to that legitimate aim – or, as it is more bluntly put in Kreuz, becomes "excessive". That question did not require discussion in any of these three cases because on the facts the fee was plainly unaffordable. In Kreuz it represented "a sum equal to the average annual salary in Poland at that time" (see para. 62 of the judgment) and the claimant had no income or savings (loc. cit.) and was, on the evidence, simply unable to pay it (para. 65). In Podbielski the company was insolvent. In Apostol the amount of the fee (which was in fact for the enforcement of a judgment) seems to have been only about the equivalent of €115; but the claimant's monthly income was a pension equivalent to €19 per month, and it was accepted that he simply could not pay at all.
"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? Although Ms Monaghan would not accept that this is the task facing the court, it seems to me that in essence that is precisely what the court has to do. In that context, as Moses LJ said in the first Unison challenge, it is not enough that the fees place a burden on those with limited means. The question is not whether it is difficult for someone to be able to pay - there must be many claimants in that position - it is whether it is virtually impossible or excessively difficult for them to do so. Moreover, the other factors which I have identified as potentially inhibiting a worker from pursuing a claim may reinforce the conclusion that the risks inherent in litigation are not worth taking. These factors engender a cautious approach to litigation but do not compel the inference that it would be impossible in practice for some of these claimants to litigate. "
(2) THE PRINCIPLES ON WHICH THE FEES ORDER CAN BE CHALLENGED
"... to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects."
"I approach [the issue of irrationality] on the basis that the Fees Orders are unlawful if there is a real (as opposed to fanciful) risk that the increase in fees will result in local authorities not performing their statutory obligations in relation to children who are at risk."
THE EVIDENCE OF UNAFFORDABILITY
(a) Notional Individual Claimants
• Scenario 5. In this scenario the notional potential claimant is a single mother with one child. She works full-time in a secretarial role in a university. She has a mortgage on her property. She has a gross monthly income of £2,271.19 (£27,255 p.a.) and "disposable monthly income", calculated according to the criteria in the original remission scheme, of £441.59. The issue fee and hearing fee for a type B claim, after remission, would represent 57% and 106% respectively of her disposable monthly income.
• Scenario 7. The notional potential claimant has a partner. Both work full-time, earning the national minimum wage. They have a child and a mortgage. Their gross monthly income is £2,497.55 (£29,970 p.a.) and their disposable monthly income is £608.43. The issue fee and hearing fee represent 41% and 82 % of that figure.
• Scenario 8. This is identical to scenario 7 except that the claimant and her partner have two children. The gross monthly income is £2,781.67 (£33,380 p.a.) and their disposable monthly income £608.43. The issue fee and hearing fee represent 45% and 93% of that figure.
"… the sample claimants chosen in scenarios 5 and 8 will not have the resources to pay the fees that they would be required to pay, even taking account of the remission scheme, and that the claimant chosen in scenario 7 is very unlikely to do so."
"… The defendant rejected the applicability of [the Joseph Rowntree] study. Eventually the matter was resolved by accepting the Lord Chancellor's approach, which calculated all essential expenditure and considered the relationship between the remaining income, described as disposable monthly income, and the fees payable after remission."
It is not clear whether that means that Unison accepted the proposed modifications or that the Joseph Rowntree figures were put to one side and reliance was placed only on the calculation of disposable income according to the original remission scheme; the point was not explored before us. But it is not necessary to resolve the question. On any view Unison did not pursue its case that the claimants would have nothing left after the expenditure necessary to meet acceptable living standards.
"… the combined effect of the remissions in the periods before and between the dates when fees must be paid, is that there is a sufficient opportunity even for families on very modest means, as illustrated in the three notional claimants, to accumulate funds to pay the fees. Proceedings will be expensive but not to the extent that bringing claims will be virtually impossible or excessively difficult."
It continued with the passage quoted at para. 43 above. At para. 42 it said:
"It is clear that any regime must be flexible, and have regard to the means of prospective litigants. The real difficulty lies in deciding when the level of fees imposed can properly be condemned as "excessive". The mere fact that fees impose a burden on families with limited means and that they may have to use hard-earned savings is not enough. But it is not possible to identify any test for judging when a fee regime is excessive. It will be easier to judge actual examples of those who assert they have been or will be deterred by the level of fees imposed."
"… that the cost of issuing proceedings in the ETs and EAT and the cost of pursuing such claims to a hearing will simply be prohibitive in many, many cases and the position has worsened by reason of the amendments made to the scheme by [the Remissions Order]."
But that is in the part of the skeleton which summarises the submissions below. It is not developed in the part expounding the grounds of appeal, nor did Ms Monaghan refer to the schedule in her oral submissions.
(b) The Impact of the Fees Order on the Number of Claims
"Far better, we suggest, to wait and see whether the fears of Unison prove to be well-founded. The hotly disputed evidence as to the dramatic fall in claims may turn out to be powerful evidence to show that the principle of effectiveness, in the fundamentally important realm of discrimination, is being breached by the present regime. If so, we would expect that to be clearly revealed, and the Lord Chancellor to change the system without any need for further litigation."
"Table 1.2 of the Tribunals Statistics Quarterly for October to December 2013, published on 13 March 2014, shows that, comparing the period October-December 2012 with the period October-December 2013 … :
- 79% fewer claims were accepted by the ET
- 83% fewer equal pay claims were accepted by the ET
- 77% fewer sex discrimination claims were accepted by the ET
- 84% fewer working time claims were accepted by the ET
- 80% fewer claims for a written statement of terms and conditions of employment were accepted by the ET.
The statistics released on 11 September 2014 cover the period April to June 2014. Among other things, they demonstrate that:
(1) Between April and June 2013 (before the fees were introduced), 44,334 claims were brought to the ET. Between 2014 (after the fees were introduced), just 8,540 claims were brought. That is a drop of 35,794 claims or 81%.
(2) Excluding 'multiple claims' – which is the approach the Respondent would prefer to take – between April to June 2013 (before the fees were introduced), 12,727 single claims were brought to the ET. Between April and June 2014 (after the fees were introduced), just 3,792 single claims were brought. That is a drop of 8,935 claims or 70%.
(3) Further, in this period there was an 84% drop in equal pay claims and an 81% drop in sex discrimination claims.
Overall, the falls in claims brought are as follows:
"58. Ms Chan's basic submission, however, is that whatever the statistics say they cannot of themselves demonstrate that the principle of effectiveness has been infringed. It is not legitimate to infer that some litigants cannot pay from the fact that a significant number do not pay. Ms Chan accepts that the imposition of a fee will necessarily deter some litigants from taking their cases but contends that there are likely to be a variety of reasons for this. Some workers who in the past may have pursued a weak case, if only in the hope of securing a small settlement in their favour, will now be reluctant to do so because of the risk of having to pay fees if the case goes to the tribunal. Others will quite properly choose to spend their limited resources in other ways rather than gamble on litigation. Ms Chan also points out that the most seriously disadvantaged are covered by the remission scheme; and that in general a successful litigant can recover the fees against the unsuccessful party. So a party with a good case can pursue it with some confidence.
59. The claimant and the intervener challenge this analysis. They do not accept that the payment of fees is likely to encourage settlement. Indeed, they submit that this is less likely if the employer considers that the employee will not choose to litigate because of the fee burden: there will then be no incentive for the employer to compromise. They submit that even if one allows for the fact that there may have been some reduction because of the introduction of compulsory conciliation – which they submit on any view would be very small - that does not begin to explain the very significant reduction. It must be the case that some litigants who actively wish to take proceedings simply cannot afford to do so because they are not entitled to remission of the fee and earn too little; no other sensible inference is possible on these figures. The income level at which relief from paying fees is lost is set too low; the effect is that for many low earners the right of access to the tribunal is indeed illusory.
60. I see the force of this submission and 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.
I have quoted the next paragraph at para. 43 above. Elias LJ then continued:
62. In my view, the court can only properly test the argument if there are actual cases which will enable the court to review the income and expenditure of a particular individual or individuals and apply the effectiveness principle in that concrete situation, as Moses LJ emphasised in the earlier proceedings."
"96. 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.
97. 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. Whilst the analogy is not exact, it seems to me to be akin to trying to prove the causation of damage in an individual case by reference to statistical evidence: see the discussion at paragraph 2-28 in Clerk & Lindsell on Torts, 21st ed. 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.
98. 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."
DISCUSSION AND CONCLUSION
"A related problem is that the relief sought is to quash the relevant regulations. But in my view the Lord Chancellor would be entitled to know in what circumstances the scheme is considered to be defective in order to remedy it. I appreciate of course that it is not for the court to draft a lawful scheme; that is for the Lord Chancellor. But here the court would be saying no more than that the inevitable inference from the statistics is that the scheme leaves an indefinable and undefined number of people with no effective way to redress wrongs. The difficulty is compounded by the fact that the Lord Chancellor has a discretion to relieve a claimant from the obligation to pay fees in exceptional circumstances. It is true that we have heard little about this discretion or when it may be exercised. But if the evidence were to suggest that the number of claimants for whom the right of access is illusory is likely to be very small, invoking the discretion might be a way of dealing with the problem whilst leaving the scheme itself intact. Quashing the scheme would then be inappropriate. … ."
CONCLUSION ON BREACH OF THE EFFECTIVENESS PRINCIPLE
(B) INDIRECT DISCRIMINATION
THE RELEVANT PRINCIPLES
"17. The Court has consistently held that the equal treatment rule laid down in Article 48 of the Treaty and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see inter alia Case 152/73 Sotgiu v Deutsche Bundespost  ECR 153, paragraph 11; Case C-27/91 URSSAF v Le Manoir  ECR I-5531, paragraph 10; Case C-111/91 Commission v Luxembourg  ECR I-817, paragraph 9; and Case C-419/92 Scholz v Opera Universitaria di Cagliari  ECR I-505, paragraph 7).
18. Accordingly, conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers (see Case 41/84 Pinna v Caisse d'Allocations Familiales de la Savoie  ECR 1, paragraph 24; Case 33/88 Allué and Another v Università degli Studi di Venezia  ECR 1591, paragraph 12; and Le Manoir, paragraph 11) or the great majority of those affected are migrant workers (see Case C-279/89 Commission v United Kingdom  ECR I-5785, paragraph 42, and Case C-272/92 Spotti v Freistaat Bayern  ECR I-5185, paragraph 18), where they are indistinctly applicable but can more easily be satisfied by national workers than by migrant workers (see Commission v Luxembourg, paragraph 10, and Case C-349/87 Paraschi v Landesversicherungsanstalt Württemberg  ECR I-4501, paragraph 23) or where there is a risk that they may operate to the particular detriment of migrant workers (see Case C-175/88 Biehl v Administration des Contributions  ECR I-1779, paragraph 14, and Case C-204/90 Bachmann v Belgium  ECR I-249, paragraph 9)."
Those paragraphs reflect the fuller reasoning of A-G Lenz, at paras. 14-29 of his opinion, from which it is clear that the Court intended to reject a contention advanced by the UK that the provisions in question would only be discriminatory if "a substantially higher number of nationals of other member states than of nationals of the member state [were] affected" (see para. 18): there was no reason to suppose that there were not as many UK nationals as non-UK nationals who were buried abroad. A-G Lenz acknowledged that such a numerical approach might indeed be necessary in some kinds of case, but he said that that was not the case where the nature of the measure was such that it was inherently more likely to affect persons in the protected category. That was so in the instant case because it was plainly inherently more likely that nationals of member states would be buried outside the UK than UK nationals: see in particular para. 27 of his opinion.
"It is clear from that body of case-law that, unless it is objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect the nationals of other Member States more than the nationals of the State whose legislation is in point and if there is a consequent risk that it will place the former at a particular disadvantage (see, to that effect, Case C-57/96 Meints v Minister van Landbouw, Natuurbeheer en Visserij  ECR I-6689, paragraph 45)."
"… where an apparently neutral provision, criterion or practice [in the jargon, a "PCP"] would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary."
In the case of legislation which is said to be indirectly discriminatory, the impugned provisions will constitute the PCP, and the issue will be whether they put persons in one of the groups protected by EU law at "a particular disadvantage" compared with persons not in that group. That approach is in fact clearly reflected, albeit not spelt out, in the judgments in O'Flynn and Borawitz: on the facts of those cases, and in the other examples given in O'Flynn, the terms of the impugned legislation necessarily put non-nationals, or their families, at a "particular" disadvantage compared with nationals of the legislating state. Indeed the terminology of particular disadvantage is used in para. 27 of the judgment in Borawitz (and there is reference in O'Flynn to "particular detriment"). The essential question in this case is thus whether the effect of the Fees Order is to put persons in a protected category at a particular disadvantage compared with persons not in that category; and if so whether that disadvantage can be objectively justified.
THE WAY THE CASE IS PUT
"the logic of this argument is not that fees cannot be charged or that the scheme should be quashed, which is the relief sought; rather it is that women being indirectly discriminated against for level B claims should not have to pay more than level A fees"
(para. 68). As regards this variant at least, Ms Monaghan accepted that that is plainly correct.
"The issue here is whether the difference in the fee is justified rather than whether any fee is justified. The rationale for the distinction between category A and B cases is that those subject to level A fees are in general likely to take less time than claims falling within category B and therefore use fewer resources. Ms Monaghan submitted that there is no direct evidence of this and that the court should not simply accept counsel's assertion to that effect. I do not accept that. In a document produced by HM Courts and Tribunals Service giving information about the fees it is expressly stated that "Type A claims tend to be more straightforward for the Tribunal to deal with, and so have lower fees." Moreover, there is clearly some rationale for the different funding arrangements for groups A and B, and in my view the explanation given is consistent both with the reason for imposing the fees in the first place and with the nature of the claims falling within the two groups. In my judgment, it is legitimate to fix the fees by reference to the service - in the sense of court resources - provided. It is true that the scheme adopts bright line rules; some level A claims will take longer than some level B claims and vice versa. But it is legitimate in circumstances like this to regulate by reference to the cost of the service in standard cases. I would therefore reject this ground."
"I have no doubt that each of the objectives relied upon in this case is a legitimate one and that the scheme taken overall, particularly having regard to the arrangements designed to relieve the poorest from the obligation to pay, is justified and proportionate to any discriminatory effect."
It is not therefore primarily directed at the justification for the specific disparate impact which is the subject of variant (1); but there is some overlap, as will appear below.
"The Ministry accept that cost alone cannot justify discriminating against part-time workers. But they argue that "cost plus" other factors may do so. This is a subtle point which is not without difficulty."
At paras. 64-68 it reviews the ECJ case-law, starting with MA (Roks) v Bestuur Van de Bedrijfsvereniging voor de Gezondheid (C-343/92),  2 CMLR 325. At paras. 69-70 it says:
"69. Hence the European cases clearly establish that a Member State may decide for itself how much it will spend upon its benefits system, or presumably upon its justice system, or indeed upon any other area of social policy. But within that system, the choices it makes must be consistent with the principles of equal treatment and non-discrimination. A discriminatory rule or practice can only be justified by reference to a legitimate aim other than the simple saving of cost. No doubt it was because the CJEU foresaw that the Ministry would seek to rely upon considerations of cost when the case returned to the national courts that it took care to reiterate that "budgetary considerations cannot justify discrimination" (para 66).
70. Our attention was drawn to some domestic authorities, and in particular Woodcock v Cumbria Primary Care Trust  EWCA Civ 330,  ICR 1126. This was an age discrimination case, in which the claimant complained that the trust had deliberately failed to comply with a requirement to consult before declaring him to be redundant, so that his employment would cease before he reached the age which would trigger a higher severance payment. The Court of Appeal held that the dismissal notice was not served with the simple aim of dismissing him before his 49th birthday but in order to give effect to a genuine decision that his position was redundant. It was justifiable to implement that decision in a way which saved money. This court must, however, take its guidance from the jurisprudence of the CJEU, and in particular the guidance which we have been given in this very case. In the circumstances it is unnecessary for us to express a view upon whether the case of Woodcock was rightly decided."
"But I would not in fact describe the first objective as costs saving. This is not a case of government refusing to correct discrimination because it would be too expensive. Rather it is more accurately characterised as requiring a contribution towards the cost of running the Tribunal Service, charging equal amounts from all who bring claims within class B."
"It is accepted that bright lines of this sort, even if they produce what appear to be arbitrary distinctions between one case and another, are often necessary and can be justified: see, e g, the age rules in (R (Reynolds) v Secretary of State for Work and Pensions sub nom R (Carson) v Secretary of State for Work and Pensions  1 AC 173)."
Ms Monaghan sought to conflate those two passages, arguing that a "bright line" rule cannot be justified where the discrimination in question relates to a protected characteristic. Whether the passages are read separately or together, they do not support such a conclusion. The fact that the distinction between type A and type B claims only reflects their different levels of demand on the ET's resources in a rough-and-ready way is no doubt a relevant consideration in assessing whether those greater demands justify the disparate impact on female claimants; but it is no more than one consideration.
"Mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed provisions is unrelated to any discrimination on grounds of sex or to provide evidence on the basis of which it could reasonably be considered that the means chosen are or could be suitable for achieving that aim … ."
She submitted that the justification based on the greater demand placed on the ET's resources by type B claims amounted to a "mere generalisation".
"… I do not think that to select a sub-group of cases within category B is a legitimate way to seek to establish indirect discrimination. It is necessary to test any potentially adverse effect of the provision, criterion or practice (PCP) by focusing on all those who are subject to it, the overall pool to whom the PCP is applied. It is not legitimate to take a self-selected group. That simply distorts the true effect of the PCP. Moreover, it yields bizarre results. If there is an adverse impact on women for discrimination claims, there must be a corresponding adverse impact on men for all non-discrimination claims (and apparently there is for unfair dismissal cases, for example). Ms Monaghan's riposte is to say that there may well be indirect discrimination against men in those cases, and that this would need to be justified too. But on that analysis, even if the PCP operated to advantage one sex overall, by a judicious selection of a particular subgroup where the claimants were predominantly of the other sex, it could be shown that the rule indirectly disadvantaged the group predominantly advantaged by the PCP as a whole. By choosing a subgroup which is in practice predominantly of one sex - say nurses or building workers - or by selecting claims typically made by one sex rather than the other, as has been done here, it would be possible to show that there was in fact indirect discrimination being practised in a whole variety of ways and each distinct type would have to be justified. I do not accept that the concept of indirect discrimination has such unacceptable and arbitrary consequences."
In the following paragraphs he supported that analysis by reference to the decisions of this Court in University of Manchester v Jones  ICR 474 and London Underground v Edwards (no. 1)  ICR 574, which were concerned with the definition of the relevant "pools" for the purpose of the Sex Discrimination Act 1975. He also referred to Lady Hale's observation in Rutherford v Secretary of State for Trade and Industry (no. 2),  UKHL 19,  ICR 785, that "indirect discrimination cannot be shown by bringing into the equation people who have no interest in the advantage or disadvantage in question" (see para. 82 of her judgment, at p. 808A).
"The claimant and the Commission take issue with the reliability of these new statistics. They say that they are based on a limited sample and the methodology is far from clear. I do not accept that. The Lord Chancellor has explained how the statistics were obtained. They were the result of a survey commissioned by the Department of Business, Innovation and Skill where almost two thousand claimants, selected randomly, were interviewed. The gender figures were based on the gender as reported by the claimants. The survey was completed before the introduction of the fees, but it was possible to identify what fee would now be payable from the information given. The results are subject to sampling error, but it seems to me that they are as reliable as any of the statistics available."
At para. 79 he recorded, though he did not explicitly accept, criticisms made by the Lord Chancellor of Unison's figures. He continued:
"80. It seems to me that all the figures which have been canvassed in these proceedings are to a greater or lesser extent unreliable. They are all derived from historical data, namely the periodic Surveys of Employment Tribunal Applications (SETA surveys).
81. Since the onus is on the claimant to show that there has been discrimination, I am not satisfied that the burden has been discharged here. Even if it has, the extent of any adverse impact is very small. That is relevant to the issue of justification."
CONCLUSION ON INDIRECT DISCRIMINATION
(C) PUBLIC SECTOR EQUALITY DUTY
"(1) A public authority must, in the exercise of its functions, have due regard to the need to–
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to -
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
Sub-section (7) sets out the familiar protected characteristics: I need not list them.
"To comply with his duty under s.149, the Lord Chancellor has taken the following steps. First, there was a pre-consultation equality impact assessment dated 14 December 2011. Second, between 14 December 2011 and 6 March 2012 the Ministry of Justice undertook a public consultation on different fee-charging structures. The consultation paper was issued with 32 general questions and 12 equality impact questions. The consultation, at this stage, did not invite consideration of whether any fees should be introduced. Third, an impact assessment was issued dated 30 May 2012. Fourth, seven events were held at which 90 people from 60 organisations attended, and had the opportunity to put forward their views. Fifth, 140 written responses were received from different groups including employees, legal groups, business groups, advisory and equality groups, and from other interested parties. A detailed analysis and response to the consultation was published by the Ministry of Justice on 13 July 2012. This included consideration of potential discriminatory impacts and proposed adjustments to be made. Sixth, an equality impact assessment on charging fees in Employment and Employment Appeal Tribunals was prepared, dated 13 July 2012. Seventh, there was consultation on the new Civil Fee Remission Scheme undertaken between 18 April 2013 and 15 May 2013. The Ministry of Justice's consultation response was dated 9 September 2013, with an impact assessment. This included an equality statement containing an assessment of the new remission scheme upon different groups."
" This EIA considers the introduction of fees in employment tribunals (ET) and Employment Appeal Tribunal (EAT).
 In accordance with our duty under section 149 of the Equality Act 2010, we have considered the equality impacts of the proposed fees structure. The following is a summary of our overall assessment. Further detail of the impacts is given in the analysis sections below.
A. Prohibited Conduct
 The introduction of the proposed fee structure would not directly discriminate against people with a protected characteristic, because the fee changes would apply to all people irrespective of any protected characteristic; i.e. there is no less favourable treatment because of a protected characteristic.
 Many of those who responded were concerned that our proposals would put certain groups of people with a relevant protected characteristic at a particular disadvantage. We have carefully considered the evidence base for these assertions. All claimants, including those with protected characteristics, will have to pay a fee to use the ET and the EAT. We cannot rule out that this may have a greater impact on some people with particular protected characteristics than those who do not share that characteristic.
 Our analysis suggests that BME groups, women, younger people and disabled people are more likely to fall into the lower income brackets and therefore these groups would be more likely to qualify for partial or full fee remissions. For these groups it is unlikely that they will experience any particular disadvantage as the fee remission mitigation is considered likely to lessen the impact.
 Our analysis also suggests that mid to higher earners may experience the greatest negative impacts of the new fees and these people are more likely those aged 25 and over without children and people from a White ethnic group. These people are unlikely to qualify for full or partial remissions so the fee remission mitigation will not lessen the impacts. Other mitigations such as the free ACAS conciliation, not introducing a 3rd tier of fees and the ability to seek an order for the respondent to pay their fees should they win, are also considered to lessen the impacts. If people with these protected characteristics are unable to settle their ET issues via ACAS, they will have to pay fees up front and we are currently unclear whether or not this will deter claimants. Overall we do not consider that the introduction of the proposed fee structures is likely to amount to indirect discrimination under the Equality Act 2010.
Discrimination arising from disability and duty to make reasonable adjustments
Harassment and victimisation
B. Advancing equality of opportunity
 We consider that it is possible that the fee structure could impact on the duty to advance equality of opportunity if potential claimants with protected characteristics are put off from taking forward discrimination cases due to the introduction of fees. However, we think the mitigations we have proposed will protect access to justice for those with protected characteristics.
C. Fostering good relations
 We consider that to the extent that this obligation to the fee proposal is relevant it is reasonable to assume that the impact of fees on fostering good relations is neutral.
 In light of the responses, we have considered the impact of the fee proposals against the statutory obligations imposed by section 149 of the Equality Act 2010. These considerations have influenced our decision to recommend two fee levels instead of the original proposal to have three as mitigation against any potential indirect discrimination.
 Our assessment is that, based on the limited information available on the protected characteristics of individuals and their level of income, the introduction of fees will impact differently depending on the varying income profiles. We believe that the measures we have put in place would mitigate any equality impacts.
 For those who can afford to pay fees, the further mitigations are the power for the tribunal to order reimbursement if they are successful and the setting of fees below full cost recovery For those who cannot afford to pay fees, including those who can only make a contribution to the fee, the further mitigation is the availability of the remissions scheme to protect their access to the tribunal. The availability of Acas conciliation lessons the impacts for all irrespective of their financial position because if offers an alternative to making a claim.
 We therefore believe that with the existing mitigations and the additional measure of introducing two fee levels instead of three we can ensure that the proposals to introduce fees will mitigate the equality impacts.
 As part of the implementation process we consider how to ensure the fee payment system and forms are accessible by those who seek to use them and that information about the availability of remissions is widely accessible."
This is of course only the summary section: the full document runs to 32 pages (excluding annexes).
"The essential challenge now advanced relates to the Lord Chancellor's comment in the equality impact assessment that neither the Lord Chancellor, nor the Ministry of Justice, nor any of the respondents "can predict with any certainty what the impact of the introduction of fees will be". Of course, that does not justify a failure to consider the likely impact. But that impact was fully considered, even though its conclusion displeased the objectors. Again, as in relation to the first ground, we underline that the duty continues and the Lord Chancellor is under an obligation to assess the impact of the fee regime on the basis of evidence revealed in practice. If it turns out, as the objectors feared, that the introduction of fees has a damaging effect on the fundamental obligation of the Lord Chancellor and government to eliminate, so far as humanly possible, discrimination against those with relevant protected characteristics and advance equality of opportunity, then the Lord Chancellor will have to take such steps as are necessary by adjusting the regime. We acknowledge the genuine fear that the introduction of the fee regime will impede the vital goal of eliminating discrimination and advancing equality of opportunity. Whether that fear is well-founded may well depend on evidence yet to be obtained, as to how the regime has worked in practice. For the reasons we have given, we dismiss this ground of complaint."
"The Commission advanced … [an] argument to the effect that there is no hard evidence to support the Lord Chancellor's assessment but as the EAT pointed out in Constable of West Yorkshire Police and another v Homer  ICR 223 para. 48, concrete evidence is not always required. A reasonable and rational view about what effects a particular policy is likely to have will in principle suffice to justify its adoption, although the impact of the policy will have to be kept under consideration to ensure that the ends justify the means. Were it otherwise, government would be stifled in its ability to introduce new and untried measures because of the uncertainty of their impact."
I respectfully agree with that.
"the Households Below Average Income survey used by the EIA to address household income and living standards is predicated on the generalised assumption that both partners in a couple benefit equally from household income; but women in fact are often not the beneficiaries of an equal share in household income"
and she referred in her speaking note to an acknowledgment in the Lord Chancellor's evidence that household income is not always equally shared. I cannot accept that this, as she describes it, "unfounded assumption" would be capable of vitiating the EIA, even in combination with the other errors alleged. I refer to what I say at para. 116 above.
WAS THE CHALLENGE IN UNISON 1 PREMATURE ?
"89. This brings us to a fundamental difficulty with the whole of this case. Brought as it was in the belief that the lawfulness of the regime had to be challenged as a matter of urgency, and in any event within three months, the court has been faced with judging the regime without sufficient evidence, and based only on the predictions of the rival parties throughout and after the hearing. Parliament decided, by affirmative resolution, to introduce the regime, authorised by statute, and debated and positively affirmed by both Houses of Parliament. Quite apart from the continuing obligation to fulfil the duties identified in the 2010 Act, the defendant has himself undertaken to keep the issue of the impact of this regime under review. If it turns out that over the ensuing months the fees regime as introduced is having a disparate effect on those falling within a protected class, the defendant would be under a duty to take remedial measures to remove that disparate effect and cannot deny that obligation on the basis that challenges come too late. It seems to us more satisfactory to wait and see and hold the defendant to account should his optimism as to the fairness of this regime prove unfounded. We believe both the claimant and the intervener will be, and certainly should be, astute to ensure that accurate figures and evidence are obtained as to the effect of this regime.
90. No doubt the defendant will also be doing the same, if he is successfully to resist a future challenge. In the meantime, we think that the fundamental flaw in these proceedings is that they are premature and that the evidence at this stage lacks that robustness necessary to overturn the regime. …"
Lord Justice Davis:
Lord Justice Moore-Bick:
ANNEX 1: "TABLE 2" (omitting the column identifying the provisions conferring jurisdiction)
1. Application by the Secretary of State to prohibit a person
|Section 3A EAA|
2. Application by a person subject to a prohibition order to vary or set it aside
|Section 3C EAA|
3. Appeal against improvement or prohibition notice
|Section 24 HSWA|
4. Appeal against assessment of training levy
|Section 12 ITA|
5. Complaint of deduction of unauthorised subscriptions
|Section 68 TULR(C)A|
6. Complaint relating to failure to deduct or refuse to deduct amount to a political fund
|Section 86 TULR(C)A|
7. Complaint that an employer has failed to permit time off for carrying out trade union duties
8. Complaint that an employer has failed to permit time off for union learning representatives
9. Complaint that an employer has failed to pay for the time off for union learning representatives
|Section 169 TULR(C)A|
10. Complaint that an employer has failed to permit time off for trade union activities
|Section 170 TULR(C)A|
11. Complaint that employer has failed, wholly or in part, to pay remuneration under a protective award
|Section 190 TULR(C)A|
12. Complaint that the Secretary of State has not paid, or has paid less than, the amount of relevant contributions which should have been paid into a pension scheme
|Section 124 PSA|
13. Breach of contract, except where the employer's contract claim is made by way of application as part of the employer's response to the employee's contract claim (as to which, see instead article 4 and Schedule 1 to this Order)
14. Reference to determine what particulars ought to be included in a statement of employment particulars or changes to particulars
|Sections 1 and 4 ERA|
15. Reference to determine what particulars ought to be included in an itemised pay statement
|Section 8 ERA|
16. Complaint of unauthorised deductions from wages
|Section 13 ERA|
17. Complaint that employer has received unauthorised payments
|Section 15 ERA|
18. Complaint that employer has failed to pay guaranteed payment
|Section 28 ERA|
19. Complaint that employer has failed to permit time off for public duties
|Section 50 ERA|
20. Complaint that employer has refused to permit, or has failed to pay for, time off to look for work or arrange training
|Sections 52 and 53 ERA|
21. Complaint that employer has refused to allow, or has Failed to pay for, time off for ante-natal care
|Sections 55, 56, 57ZA and 57ZB ERA|
22. Complaint that employer has refused to allow time off for dependants
|Section 57A ERA|
23. Complaint that employer has failed to allow, or to pay for, time off for trustee of pension scheme
|Sections 58 and 59 ERA|
24. Complaint that employer has failed to allow, or to pay for, time off for employee representative
|Sections 61 and 62 ERA|
25. Complaint that employer has failed to allow, or to pay for, time off for young people in Wales and Scotland
|Sections 63A and 63B ERA|
26. Complaint that employer has failed to pay for time off on medical or maternity grounds
|Sections 64, 68 and 68C|
27. Complaint that employer has failed to deal with an application in relation to study or training in accordance with regulations or refused the application on the basis of incorrect facts
|Sections 63D to 63H ERA|
28. Complaint that employer has unreasonably failed to provide a written statement of reasons for dismissal or the particulars are inadequate or untrue
|Section 92 ERA|
29. Reference in respect of a right to redundancy payment
|Section 135 ERA|
30. Reference related to payment out of National Insurance Fund
|Section 166 ERA|
31. References related to payments equivalent to redundancy payments
|Sections 167, 168 and 177 ERA|
32. Complaint that the Secretary of State has failed to make any, or insufficient, payment out of the National Insurance Fund
|Section 182 ERA|
33. Appeal against a notice of underpayment
|Section 19C NMWA|
34. Appeal against a notice issued by the Commission for equality and Human Rights where the notice relates to an unlawful act
|Section 21EA 2006|
35. Complaint that prospective employer made enquiries < about disability or health/TD>
|Section 60EA 2010|
36. Application in relation to the effect of a non-discrimination rule in an occupational pension scheme
|Section 61EA 2010|
37. Complaint in relation to a breach of a maternity equality clause
|Section 73EA 2010|
38. Complaint in relation to a breach of, or application in < relation to the effect of, a maternity equality rule in an occupational pension scheme/TD>
|Section 75EA 2010|
39. Complaint in relation to terms prohibiting discussions about pay
|Section 77EA 2010|
40. Complaint that a term in a collective agreement is void or unenforceable
|Section 145EA 2010|
41. Appeal of decisions of compensating authority
|Regulation 42 CEC|
42. Complaint that employer has failed to pay for remuneration time off for safety representative
|Regulation 4(2) of, and Schedule 2 to, the SRSC|
43. Reference that there has been a failure to consult with employee representatives about contracting out of
|Regulation 4 OPS(CO)R and regulation 9 of OPS (DI)R
44. Complaint that employer has failed to pay for time off to carry out Safety Representative duties or undertake training
|Regulation 7 of, and Schedule 1 to, the HSCE|
45. Complaint that employer has refused to allow annual Leave or make payment in respect of annual leave
|Regulations 13, 13A, 14 and 16 WTR|
46. Appeal against improvement or prohibition notice
|Paragraph 6 of Schedule 3 to WTR|
47. Appeal against improvement or prohibition notice
|Regulation 23 COMAH|
48. Complaint in relation to refusal of annual leave or to make payment
|Regulation 11 MSR|
49. Complaint in relation to refusal to provide paid annual leave
|Regulation 4 CAR|
50. Complaint in relation to failure to provide free health assessments
|Regulation 5 CAR|
51. Complaint in relation to refusal of annual leave or to make payment
|Regulation 11 FVR|
52. Complaint that employer has refused to allow or failed to pay for time off for information and consultation or negotiating representatives
|Regulations 27 and 28 ICR|
53. Appeal against improvement notice
|Paragraph 6(2) of Schedule 2 to the RTR|
54. Complaint in relation to failure to pay compensation in pursuance of tribunal order
|Regulation 15(7) and 15(8) TUPE|
55. Complaint that employer has failed to allow, or pay for, time off for functions as employee representative
|Paragraphs 2 and 3 of the Schedule to OPR|
56. Complaint that employer has failed to allow, or pay for, time off for members of special negotiating body
|Regulations 28 and 29 EC SR|
57. Complaint that employer has failed to allow, or pay for, time off for members of special negotiating body
|Regulations 43 and|
58. Appeal against notice from Health and Safety Executive or a local authority
|Regulation 21 and Part 2 of Schedule 8 to REACHER|
59. Reference to determine what particulars ought to be Included in an itemised statement of stipend
|Regulation 6 EOR|
60. Reference to determine what particulars ought to be included in a statement of particulars or changes to particulars
|Regulations 3 and 6 EOR|
61. Complaint that employer has failed to allow, or pay for, time off for members of special negotiating body
|Regulations 26 and 27 ELLR|
The abbreviations are as follows:
CAR Civil Aviation (Working Time) Regulations 2004 CCBR Companies (Cross-Border Mergers) Regulations 2007 CEC Colleges of Education (Compensation) Regulations 1975 COMAH Control of Major Accident Hazards Regulations 2015 EA 2006 Equality Act 2006 EA 2010 Equality Act 2010 EAA Employment Agencies Act 1973 ECSR European Cooperative Society (Involvement of Employees) Regulations 2006 EJOs Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 and
Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994
EOR Ecclesiastical Offices (Terms of Service) Regulations 2009 ELLR European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 ERA Employment Rights Act 1996 ETA Employment Tribunals Act 1996 FVR Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004 HSCE Health and Safety (Consultation with Employees) Regulations 1996 HSWA Health and Safety at Work etc Act 1974 ICR Information and Consultation of Employees Regulations 2004 ITA Industrial Training Act 1982 MSR Merchant Shipping (Working Time: Inland Waterways) Regulations 2003 NMWA National Minimum Wage Act 1998 OPR Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 OPS(CO)R Occupational Pension Schemes (Contracting-Out) Regulations 1996 OPS(DI)R Occupational Pensions Schemes (Disclosure of Information) Regulations 1996 PSA Pension Schemes Act 1993 REACHER REACH Enforcement Regulations 2008 RTR Road Transport (Working Time) Regulations 2005 SRSC Safety Representatives and Safety Committees Regulations 1977 TULR(C)A Trade Union and Labour Relations (Consolidation) Act 1992 TUPE Transfer of Undertakings (Protection of Employment) Regulations 2006 WTR
Working Time Regulations 1998
ANNEX 2: EU-DERIVED RIGHTS IN THE ET
Right EU source UK source 1 Paid time off for health and safety representatives Directive 89/391/EEC Health and Safety (Consultation with Employees) Regulations 1996 2 Written statement of terms and conditions Directive 91/533/EEC ERA 1996, Part I 3 Maternity rights – right to suitable alternative work or pay if suspended Directive 92/85/EEC ERA 1996, Part VII 4 Maternity/parental rights – maternity/parental leave Directives 92/85/EEC and 2010/18/EC ERA 1996, Part VI, VIII; Maternity and Parental Leave Regulations 1999 5 Maternity/parental rights – prohibition of detriment Directives 92/85/EEC and 2010/18/EC Maternity and Parental Leave Regulations 1999, reg 19; ERA 1996, Part V 6 Maternity/parental rights – unfair dismissal Directive 92/85/EEC and 2010/18/EC Maternity and Parental Leave Regulations 1999, reg 20; ERA 1996, Part X 7 Protection of young people at work Directive 94/33/EC WTR 1998 8 Part-time workers discrimination Directive 97/81/EC Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 9 Part-time workers – unfair dismissal Directive 97/81/EC Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, reg 7; ERA 1996, Part X 10 Information and consultation on collective redundancies; enforcement of protective award Directive 98/59/EC TULR(C)A 1992, Part IV, Chapter II 11 Fixed-term workers discrimination Directive 99/70/EC Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 12 Fixed-term workers – prevention of abuse (employee treated as permanent employee) Directive 99/70/EC Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, regs 8-9 13 Discrimination (etc) related to sex, race, disability, sexual orientation, religion or belief, and age Articles 8, 10, and 157; Directives 2000/43/EC, 2000/78/EC, 2006/54/EC EA 2010, Part 5 14 Equal pay Articles 8, 10, and 157; Directive 2004/56/EC EA 2010, Parts Part 5, Chapter 3 15 Transfer of undertaking –information and consultation Directive 2001/23/EC TUPE 2006 16 Transfer of undertaking – unfair dismissal Directive 2001/23/EC TUPE 2006, reg 7; ERA 1996, Part X 17 Information and consultation of employees in general – paid time off Directive 2002/14/EC Information and Consultation of Employees Regulations 2004 18 Information and consultation of employees – prohibition of detriment Directive 2002/14/EC Information and Consultation of Employees Regulations 2004; ERA, sections 48-49 19 Information and consultation of employees – unfair dismissal Directive 2002/14/EC Information and Consultation of Employees Regulations 2004; ERA, Part X 20 Working time – daily rest, weekly rest, rest breaks, paid annual leave Directive 2003/88/EC WTR 1998 21 Working time – prohibition of detriment Directive 2003/88/EC WTR 1998; ERA 1996, Part V 22 Protection in case of employer's insolvency (payments from Secretary of State) Directive 2008/94/EC ERA 1996, sections 166-170, Part XII 23 Agency workers discrimination Directive 2008/104/EC Agency Workers Regulations 2010 24 Agency workers – unfair dismissal Directive 2008/104/EC Agency Workers Regulations 2010, reg 17; ERA 1996, Part X
Note 1 In the Order as originally made equal pay claims were listed as type A; but that was an error and they were subsequently removed and so became type B – see the Tribunals Fees (Miscellaneous Amendments) Order 2014.
[Back] Note 2 From now on I will use the shorthand “claimant” to refer also to appellants in the EAT. This is not strictly accurate, since appellants may well have been respondents in the ET. But it will be rare for such respondents to be individuals. [Back] Note 3 Ms Monaghan in her skeleton argument provided a helpful list of EU-derived claims, which I annex. (Here and elsewhere I refer to the argument as Ms Monaghan’s alone for convenience and not with any intention to devalue Mr Purchase’s contribution.) [Back] Note 4 As regards the UK, Elias LJ referred at para. 24 of his judgment inUnison 2, to Ahmed v HM Treasury  UKSC 2,  2 AC 534, per Lord Phillips at para. 146 (p. 654 B-C).
[Back] Note 5 Similar arguments would, it seems, apply also to County Court claims, primarily by reference to article 6 of the Convention (although the County Court does have jurisdiction over some EU-derived claims). The fees system is different, being related to the value of the claim, but it can produce broadly similar figures (seeUnison 1, at para. 52); and, as I have said, the remission regime is the same.
[Back] Note 6 See, e.g., Magorrian v Eastern Health and Social Services Board (C-246/96),  ICR 979, at para. 37 (p. 1003).
[Back] Note 7 The skeleton arguments refer to two other Strasbourg cases of the same character – Weissman v Romania (63945/00), BAILII:  ECHR 2204 and Kijewska v Poland (73002/01), BAILII:  ECHR 715 – but we were not taken to them and they contain no statements of principle not apparent from the three cases to which I refer. [Back] Note 8 Mr Barr pointed out that average awards are much higher – very approximately double; but that reflects the impact of comparatively few very large awards and is less significant than the median in this context. [Back] Note 9 There may be an analogy – though I do not suggest that it is exact – with the approach taken to the legislation relating to the automatic deportation of foreign criminals. In MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192,  1 WLR 544, this Court held that the provision for deportation not to proceed “in exceptional circumstances” could be interpreted broadly enough to cover all those cases in which deportation would involve a breach of article 8 of the Convention. [Back] Note 13 This short-circuits a dispute about an observation made by the Divisional Court at para. 68 of its judgment to the effect that “it can be said that there was no assessment at all in relation to the changes to the remission scheme”. Mr Barr said that a “not” had evidently been omitted before “said”. Ms Monaghan responded that Ms Chan had suggested just such a correction when the Court’s judgment had been circulated in draft but that it had not been adopted. I am bound to say that I think that Mr Barr is probably right despite the Court’s failure to make the correction, but the point can be left to die a quiet death.
[Back] Note 15 Ms Monaghan told us that the available statistics did not suggest that the success rate of claims brought since the introduction of the fees regime was significantly higher than before, so that there is no basis for an inference that it is the weaker claims that have been deterred. But we did not go into the point in any detail. [Back]
Note 1 In the Order as originally made equal pay claims were listed as type A; but that was an error and they were subsequently removed and so became type B – see the Tribunals Fees (Miscellaneous Amendments) Order 2014. [Back]
Note 2 From now on I will use the shorthand “claimant” to refer also to appellants in the EAT. This is not strictly accurate, since appellants may well have been respondents in the ET. But it will be rare for such respondents to be individuals. [Back]
Note 3 Ms Monaghan in her skeleton argument provided a helpful list of EU-derived claims, which I annex. (Here and elsewhere I refer to the argument as Ms Monaghan’s alone for convenience and not with any intention to devalue Mr Purchase’s contribution.) [Back]
Note 4 As regards the UK, Elias LJ referred at para. 24 of his judgment inUnison 2, to Ahmed v HM Treasury  UKSC 2,  2 AC 534, per Lord Phillips at para. 146 (p. 654 B-C). [Back]
Note 5 Similar arguments would, it seems, apply also to County Court claims, primarily by reference to article 6 of the Convention (although the County Court does have jurisdiction over some EU-derived claims). The fees system is different, being related to the value of the claim, but it can produce broadly similar figures (seeUnison 1, at para. 52); and, as I have said, the remission regime is the same. [Back]
Note 6 See, e.g., Magorrian v Eastern Health and Social Services Board (C-246/96),  ICR 979, at para. 37 (p. 1003). [Back]
Note 7 The skeleton arguments refer to two other Strasbourg cases of the same character – Weissman v Romania (63945/00), BAILII:  ECHR 2204 and Kijewska v Poland (73002/01), BAILII:  ECHR 715 – but we were not taken to them and they contain no statements of principle not apparent from the three cases to which I refer. [Back]
Note 8 Mr Barr pointed out that average awards are much higher – very approximately double; but that reflects the impact of comparatively few very large awards and is less significant than the median in this context. [Back]
Note 9 There may be an analogy – though I do not suggest that it is exact – with the approach taken to the legislation relating to the automatic deportation of foreign criminals. In MF (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1192,  1 WLR 544, this Court held that the provision for deportation not to proceed “in exceptional circumstances” could be interpreted broadly enough to cover all those cases in which deportation would involve a breach of article 8 of the Convention. [Back]
Note 13 This short-circuits a dispute about an observation made by the Divisional Court at para. 68 of its judgment to the effect that “it can be said that there was no assessment at all in relation to the changes to the remission scheme”. Mr Barr said that a “not” had evidently been omitted before “said”. Ms Monaghan responded that Ms Chan had suggested just such a correction when the Court’s judgment had been circulated in draft but that it had not been adopted. I am bound to say that I think that Mr Barr is probably right despite the Court’s failure to make the correction, but the point can be left to die a quiet death. [Back]
Note 15 Ms Monaghan told us that the available statistics did not suggest that the success rate of claims brought since the introduction of the fees regime was significantly higher than before, so that there is no basis for an inference that it is the weaker claims that have been deterred. But we did not go into the point in any detail. [Back]