R (on the application of UNISON) v the Lord Chancellor and the Equality and Human Rights Commission (intervening) [2014] EWHC 218 (Admin)

Case No: CO/8235/2013


7 February 2014

Link to judgment


Discrimination grounds

Age, disability, religion or belief, race and sex.

Summary of case

This challenge was brought by UNISON to the Employment Tribunal fees regime on four grounds: that it was in breach of the EU principle of effectiveness, that it was in breach of the EU principle of equivalence, that it was contrary to the equality duty and that it was indirectly discriminatory.


The Divisional Court dismissed Unison’s application for judicial review of the Lord Chancellor’s decision to introduce a fees regime for bringing and pursuing claims in the Employment Tribunal and the Employment Appeal Tribunal. It could not be said that either the principle of effectiveness or equivalence had been breached, it was not contrary to the equality duty and was not indirectly discriminatory as it was not possible so soon after the introduction of the fees regime to reach a conclusion as to objective justification.

L J Moses noted 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.’

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