April 13 2024
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Lord Chancellor hoisted by own petard

Lord Chancellor hoisted by own petard

At 10.20 this morning, I joined a fair few employment law geeks in scanning my Twitter feed for news of the judgment in UNISON’s judicial review of the employment tribunal fees regime introduced last July.

The High Court hearing last November had concluded with the judges reserving judgment, and it has since been a frustratingly long wait for those of us hoping that the courts might do what Parliament signally failed to do: ensure access to justice for workers subjected to unlawful discrimination and other abuses.

When the first tweets came through, it was the pessimists – or realists, as they might prefer to describe themselves – who seemed to have been vindicated: the judges had dismissed all four grounds of UNISON’s challenge. And the good people at UNISON promptly declared the judgment “deeply disappointing”. Oh well, I thought, a good effort. Close but no cigar.

However, within a few minutes someone had tweeted a link to the full written judgment (PDF). And that tells a very different story to the headline of ‘UNISON challenge to ET fees dismissed’.

UNISON had launched its judicial review challenge in late June last year on the basis that it had to do so within three months of the fees regime coming into force (on 29 July).

Now, I have to confess that I was never entirely convinced of the need to launch the challenge quite so early, and suspect there may have been an element of wanting to be first to the gate – at least one other major trade union was at that time considering bringing a challenge of its own. But that’s fair enough.

The principal consequence of this, however, was that, at the time of the court hearing, in late October and early November, the only available statistics on the number of tribunal claims since 29 July related only to August and September (and even those statistics had had to be wrung out of the Ministry of Justice by the UNISON legal team).

And, whilst those statistics showed the number of individual claims to have plummeted from an average of some 4.500 in the first six months of 2013, to just 1,000 in September, no one could tell the Court whether the number of claims had since bounced back to more ‘normal’ levels, or had remained so spectacularly depressed.

With the Lord Chancellor’s lawyers arguing that it was therefore too early to conclude that the fees regime has had a sustained impact on the number of claims, this unavoidable lack of data seems to have left the two judges feeling that they had no choice but to agree. But this doesn’t mean the judges were convinced that fees have not had such an impact. Far from it. In what for me is the key passage of the judgment, the judges say:

“The Lord Chancellor contended that it was far too early to rely upon the accuracy of [the provisional statistics for September]. But if they are anything like accurate then the impact of the fees has been dramatic. … The Lord Chancellor has now, publicly and in court, announced that the [challenge] is premature. It would be quite impossible for him to object to any future claim on the basis that it is too late to launch. 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 [one of the four grounds of UNISON’s challenge] is being breached by the [fees] 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. If further litigation is necessary, the Lord Chancellor would not be able to resist it on the basis that it was delayed, since it is his own contention that the claim is premature.”

To use a geeky technical term, the judges have nailed the Lord Chancellor’s genitals to the wall. And, should the growing mountain of anecdotal evidence from regional employment tribunal user group meetings – that the number of claims continues to run at just 25-30 per cent of the pre-fees level – prove to be accurate, and should the Lord Chancellor not voluntarily reform the fees regime accordingly, then the judges would, it seems to me, be most happy to take up their hammer once more. With far more painful effect.

So, whilst it is naturally disappointing not to have had a clear win this time round, the Lord Chancellor seems to have won the battle with UNISON only by putting himself in very grave danger of losing the war.

The attention of MPs, the media and others should now be turned to the Ministry of Justice’s repeated refusal to release any more recent tribunal claim statistics. In the past few weeks, the Ministry has declined to answer both repeated Freedom of Information requests from me, and a Parliamentary Question by Diana Johnson MP. And why should that be, if the statistics would remove the Lord Chancellor’s genitals from risk?

Call me sadistic, but I think this is going to be worth the extra wait.