IN THE COURT OF APPEAL (CIVIL DIVISION) and GROUNDS OF APPEAL

Transcription

1 IN THE COURT OF APPEAL (CIVIL DIVISION) Appeal no: on appeal from QUEEN S BENCH DIVISION ADMINISTRATIVE COURT DIVISIONAL COURT (MOSES LJ, IRWIN J) BETWEEN THE QUEEN (on the application of UNISON) Appellant and THE LORD CHANCELLOR Respondent GROUNDS OF APPEAL A reference to the Fees is a reference to the fees required to be paid under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) in order to bring and continue Employment Tribunal claims and Employment Appeal Tribunal appeals Ground 1: the principle of effectiveness 1. The Divisional Court erred in failing to hold that the Fees make it virtually impossible or excessively difficulty for a significant number of individuals to exercise rights conferred by EU law. 2. Without prejudice to the generality of this ground of appeal, the Divisional Court erred in: (1) Concluding that the principle of effectiveness is not breached provided that the Fees are not so high that a prospective litigant is unable to pay them. The issue is not simply a statistical one about how much a family will have to pay from its so- called disposable income. The principle requires a much broader analysis, which the Divisional Court failed to apply. 1

2 (2) Failing to conclude, in any event, that the Fees are such that a significant number of prospective litigants would, in reality, find it virtually impossible or excessively difficult to pay them. (3) Failing or failing adequately to take account of the statistics then available, which demonstrated a large fall in the numbers of claims (of 88% in Wales, for example), which the Divisional Court itself described as dramatic. 3. Further or alternatively, the Appellant seeks the Court s permission to rely on statistical evidence as to the impact of the Fees on the numbers of claims brought, which was not available at the time of the hearing below and which demonstrates that the impact has indeed been dramatic across all regions. Ground 2: the principle of equivalence 4. The Divisional Court erred in failing to hold that the Fees breached the principle of equivalence, when comparing a claim for discrimination under the Equality Act 2010 ( the 2010 Act ) in the Employment Tribunal ( ET ) with (i) a claim for discrimination under the 2010 Act in the County Court, (ii) a claim for discrimination under the Human Rights Act 1998 in the County Court, and/or (iii) a claim for discrimination under the 2010 Act in the First- Tier Tribunal ( the FTT ). 5. Without prejudice to the generality of the above, the Divisional Court erred in: (1) Basing the comparison on a contract claim for 20,000, rather than a discrimination claim for a sum similar to the median awards made in ET discrimination claims of approximately 5,000. (2) Holding that alleged differences between the ET and the County Court procedures were such as to mean that the principle of equivalence was not breached. (3) Failing to determine the Claimant s claim that there was also a breach of the principle of equivalence when ET discrimination claims were compared with discrimination claims in the FTT, in which (i) there is no fee payable at all and (ii) the costs regime is the same as that of the Employment Tribunal. 2

3 Ground 3: Public Sector Equality Duty 6. The Divisional Court erred in failing to hold that the Respondent failed to comply with the Public Sector Equality Duty ( PSED ). 7. Without prejudice to the generality of this ground of appeal, the Divisional Court erred in that: (1) Its own findings demonstrated that the Respondent had failed to comply with the PSED. These include, for example, the findings in paragraphs of the Judgment that (i) there was no reference in the equality assessments as to the size of awards in discrimination claims or the difficulties in enforcing them, (ii) the proposals failed properly to take into account the impact on women bringing discrimination claims, (iii) there was no or no further analysis after acknowledgement that the introduction of the Fees would potentially have a differential impact on those women who claim sex discrimination, and (iv) there was no assessment at all in relation to the changes introduced to the remission scheme by the Courts and Tribunals Fee Remissions Order 2013 (SI 2013/2302). (2) Dismissing this ground on the basis that time and energy could more properly have been devoted to consideration of the substantive grounds, rather than attacks on the procedure adopted prior to the introduction of the regime (paragraph 67). The PSED is a substantive legal obligation. Further, it has been emphasised many times that this is a very important obligation. (3) Applying too low a threshold for compliance with the PSED. A public body does not have due regard simply because it cannot be said that there was no assessment at all (paragraph 68) or because he did not disregard the arguments made by consultees (paragraph 66), particularly in the context of the present case. Ground 4: indirect discrimination 8. The Divisional Court erred in failing to hold that the Fees were indirectly discriminatory. 3

4 9. Without prejudice to the generality of this ground of appeal, the Divisional Court erred in that: (1) There was sufficient evidence to prove a particular disadvantage. It was not necessary for the Claimant to use statistics to prove the precise extent of the disadvantage, not least because the CJEU has made it clear that where there is an intrinsic disadvantage this alone is enough to shift the burden to the Defendant. (2) In the circumstances, it was incumbent upon the Divisional Court to consider whether or not the disadvantage was objectively justified. In any event, there was no reason why the Court could not determine whether or not any disadvantage was capable of being justified in the sense that the Defendant s objectives genuinely were unrelated to cost- saving. The Court declined to do so. (3) The disadvantage was not objectively justified and/or was not unrelated to cost- saving. Ground 5: failure to determine issues 10. The Divisional Court erred in failing to determine the Claimant s whole case, based on principle and the evidence available. Further or alternatively, this amounted to a serious procedural or other irregularity which made the judgment unjust. 11. The Divisional Court accepted many of the Claimant s arguments about the significance and impact of the introduction of the fees regime, particularly in respect of discrimination. However, the Court took the view that it would be better to wait and see whether the fears of Unison prove to be well- founded (paragraph 45) and to wait and see and hold the Lord Chancellor to account should his optimism as to the fairness of this regime prove unfounded (paragraph 88). In the meantime, the number of claims has reduced by 79% indicating that many, many potential claimants have been denied access to or have been deterred from accessing an ET to vindicate important employment rights including those emanating from EU law (as the evidence before the court and confirmed since demonstrated). 4

5 KARON MONAGHAN QC MATHEW PURCHASE 9 April