R (on the application of Unison) v The Lord Chancellor [2014] EWHC 218

07 February 2014

Public Sector Equality Duty

UNISON – supported by the EHRC as the intervener – challenged the lawfulness of the Employment Tribunals and Employment Appeal Tribunal Fees Order on four grounds.

  • The first was that the requirement violated the EU principle of effectiveness. This is the principle whereby member states must not make it virtually impossible or excessively difficult to exercise rights conferred by EU law, e.g. discrimination law. 

The High Court ruled that it was not enough that the fees made lodging a complaint 'daunting'. It had to be shown that people were unable to pay. The Court felt it too soon to assess the impact. Evidence as to how the system works in practice, such as a dramatic fall in claims, may show that the principle of effectiveness is being breached.


  • The second ground on which the claim was brought was that the fee regime breached the EU principle of equivalence. This principle places an obligation on member states to not make the process of bringing claims based on rights derived from EU law harder than the process governing similar domestic claims. The comparison used was a claim in contract brought in the County Court. 

The High Court rejected this argument, as in the County Court the unsuccessful party is ordered to pay the legal costs of the successful party, whereas in the Employment Tribunal parties bear their own costs. This was said to be a disincentive to Claimants of limited means bringing a case in the County Court, compared to the Employment Tribunal.

  • The Third ground was that the Lord Chancellor was in breach of the Public Sector Equality Duty. The High Court rejected this argument. It held that the duty only required that the public authority collect, collate, and consider all relevant information as to the likely impact of the proposals. The weight given to the relevant information and the conclusions reached is a matter for the public authority to decide on and not for the Court, unless it can be challenged on public law grounds of being outside the range of reasonable conclusions. 

However, the Court held that the public sector equality duty is a continuing one and the Defendant is under an obligation to assess the impact of the fee regime on the basis of evidence revealed in practice. This leads to the Claimant’s fourth ground.

  • The Claimant’s fourth ground is that the fee regime amounted to indirect discrimination against women, ethnic minorities and the disabled. The Court strongly suspected that the requirement to pay a higher fee for discrimination, harassment, and victimisation cases under the Equality Act would have an adverse impact on women and workers with other protected characteristics as they were more likely to bring discrimination cases. 

However, the Court held that once remissions for the lowest income claimants were taken into account, it was not possible to say what the impact would be and to reach a conclusion on whether the fee regime can be objectively justified. If in the coming months there is evidence of the fee regime having an adverse impact on those within a protected class, the Defendant would be under a duty to take remedial measures to remove that adverse impact.

R (on the application of Unison) v The Lord Chancellor [2014] EWHC 218 (Admin), Equality Law Reports, Michael Rubenstein Publishing Ltd, [2014] EqLR 215 - 229.