QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE IRWIN
| The Queen on the Application of UNISON
|- and -
|The Lord Chancellor
The Equality and Human Rights Commission
Ms Susan Chan (instructed by The Treasury Solicitors) for the Defendant
Mr Michael Ford QC (instructed by Ms Rosemary Lloyd) for the Intervener
dates: 22-23rd October and 4 November, 2013
Crown Copyright ©
Lord Justice Moses :
(1) The requirement to pay fees as a condition of access to the Employment Tribunal and Employment Appeal Tribunal violates the principle of effectiveness since it will make it virtually impossible, or excessively difficult, to exercise rights conferred by EU law;
(2) the requirement violates the principle of equivalence since the requirement to pay fees or fees at the levels prescribed means that the procedures adopted for the enforcement of rights derived from EU law are less favourable than those governing similar domestic actions;
(3) that in reaching the decision to introduce the new fees regime and in making the 2013 Order the defendant acted in breach of the Public Sector Equality Duty, and
(4) that the effect of the 2013 Order is indirectly discriminatory and unlawful.
Breach of the Principle of Effectiveness
"65. However, restrictions applied which are of a purely financial nature and which…are completely unrelated to the merits of an appeal or its prospects of success, should be subject to particularly rigorous scrutiny from the point of view of the interests of justice."
"100. One of the principles on which the Government is seeking to build a fee collection process is that of paying for the service before it is received…which is in line with how the civil courts operate…"
Breach of Public Sector Equality Duty
"We do not consider that, for those negatively impacted, the proposals will amount to a substantial disadvantage in monetary terms. We consider that the fee remission system proposed will ensure that access to justice is maintained for those who are unable to afford to pay a fee". (paragraph 11)
"Eighty-two per cent of sex discrimination complaints were brought by women and equal pay complaints can only be brought on the grounds of sex. These more often involve bringing an equal pay claim, naming a male comparator who is doing similar work. Consequently most of these complaints were made by women. It could therefore be argued that the introduction of fees will potentially have a differential impact on those women who claim on those grounds."
There the comments end.
"Article 2.1(b) Indirect Discrimination:
'Where an apparently neutral provision, criterion or practice 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."
Baroness Hale acknowledged the change of approach in Chief Constable of West Yorkshire Police v Homer  ICR 704, UKSC 15:-
"…the new formulation was not intended to make it more difficult to establish indirect discrimination: quite the reverse…it was intended to do away with the need for statistical comparisons where no statistics might exist. It was intended to do away with the complexities involved in identifying those who could comply with those who could not, and how great the disparity had to be. Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages."
As this court has said previously, cases such as this in which a vast amount of detailed documentation was produced for a hearing at which the time was underestimated and which had to be adjourned, cried out for detailed case management before it started. There was no control over the length of the skeletons, still less the size of the font, and when the case was adjourned for an extra day's hearing, a further lever arch file had to be produced. In particular, when permission was given for the Commission to intervene, no directions were given as to the timing of the skeletons so as to avoid what happened in this case. The Commission's lengthy but important intervention with supporting evidence and documentation came after the Lord Chancellor had submitted his written argument in response to that of Unison.
The Lord Chancellor was given no fair opportunity to reply to that document, leading to the necessity for a further adjournment, although even then further documents and arguments were being produced right up to the end of the hearing, and after. Permission should have been given earlier and, at the time when permission was given for the Commission to intervene, detailed directions should have been given as to the way the evidence was to be presented by all the parties and the time for lodging skeleton arguments, so that the Lord Chancellor had a proper opportunity to respond and the court had time to rule on the way the evidence should be presented and the length of presentation. In addition, over a hundred authorities were produced, most of which were never looked at, at all. We hope, with considerable pessimism, that this manner of engaging in litigation of important issues will not occur again. It is easy to avoid by clear practice directions, similar to those which apply in the Court of Appeal, and by the legal teams, who have spent so much time and hard work on this case, remembering that excessively lengthy and detailed argument, even if the court is able to understand it, is unlikely to be persuasive.