* United Kingdom, Supreme Court of the United Kingdom , 26 July 2017 UKSC 2015/0233

Identification of the case

• Non-discrimination (art. 21 CFREU)
• Right to an effective remedy and to a fair trial (art. 47 CFREU)

• Sections 42 (1) and 42(3) of the Tribunals, Courts and Enforcement Act 2007
• Section 19 of the Equality Act 2010
• Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013 (SI 2013/1892) (Fees Order)

• Articles 2 and 8 of Directive 91/533/EEC
• Directive 2003/88/EC

Summary of the case

The trade union UNISON (the appellant), supported by the Equality and Human Rights Commission and the Independent Workers Union of Great Britain as interveners, challenged the lawfulness of a Fees Order made by the Lord Chancellor. This imposed fees for proceedings in employment tribunals and employment appeal tribunals with the purposes of transferring part of the cost burden of the tribunals from tax payers to users of their services, deterring the bringing of unmeritorious claims and encouraging earlier settlement of disputes. It was argued that the making of the Fees Order was not a lawful exercise of those powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups. Specifically, it was argued that the effect of the Fees Order was discriminatory as it impeded access to justice for claimants with lower incomes. Accordingly, the appellant issued a claim for judicial review on the ground that the Fees Order was in violation of EU principle of effectiveness.

• Civil judicial enforcement

Quashing of the Fees Order

First, it was held that the prohibition of discrimination in Section 29 of the Equality Act 2010 (which is based on EU law) was applicable to the Fees Order and that the United Kingdom is bound by the CFREU.

Addressing whether or not the Fees Order was indirectly discriminatory within the meaning of Section 19 the Court noted that different types of claims had different fees, and that the type of claim with higher fees (Type B, including discrimination claims) was brought more often by women than the type with lower fees (Type A). This could put women at a particular disadvantage compared to men, requiring that the disparate impact be justified.

The Court then asked whether charging higher fees for Type B claims was consistent with the aims of the Fees Order (transferral of the cost of tribunals from the taxpayer to the users; deterring unmeritorious claims; and encouraging earlier settlements). Linking price to cost of proceedings, which had resulted in the disparity in fees, is one means of achieving the Order’s aims. However, under Article 52(1) CFREU, read together with Article 47 CFREU (which the Court noted reaffirmed the general principle of effective judicial protection), this method had to be a proportionate means of achieving those aims. The Supreme Court took note, pursuant to Article 52(3) CFREU, of the case law of the ECtHR on proportionality in relation to the right to a fair trial enshrined in Article 6(1) ECHR. Ultimately, the Court found that the limitation of the right to an effective remedy resulting from the Fees Order did not respect the essence of that right and was not proportionate.

Additionally, the effect of the fees for Type B claims resulted in meritorious claims being deterred, putting the people bringing those claims at a particular disadvantage. Deterring discrimination claims is in itself discrimination against the people – by definition people with protected characteristics – who bring them, and could be even harder to justify than the charging of higher fees for Type B cases generally, given the importance which has always been attached in EU law to the goal of achieving equality of treatment in the workplace and to gender equality in particular.

However, reiterating the lower courts’ reasoning, the Supreme Court noted that the provision, criterion or practice prohibited by Section 19(2)(a) Equality Act 2010 must apply to everyone, whether or not they share a particular protected characteristic. Under Section 19(2)(b), a provision, criterion or practice is discriminatory if it puts a sub-group of those people, who have a particular protected characteristic, at a particular disadvantage when compared with others who do not share that characteristic. Even if the sub-group of women who bring discrimination claims were focused on, they were not put at any greater disadvantage by the higher fees than other Type B claimants. There was no greater or different need to justify the higher fees in discrimination claims than there was in any other sort of Type B claim.

Role of the Charter and role of the general principles on enforcement

The case fell within the scope of EU law, with many of the rights enforceable in Employment Tribunals having their source in EU law. According to Article 51 CFREU, to the extent that in providing for the claims which may be brought before an Employment Tribunal, the United Kingdom is implementing EU law, the United Kingdom must respect the Charter.

• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Explicit reference to Art. 6 ECHR
• Explicit reference to Art. 13 ECHR

Equality Act 2010

Section 19 - Indirect discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are— • age; • disability; • gender reassignment; • marriage and civil partnership; • race; • religion or belief; • sex; • sexual orientation.

Sections 42 (1) and 42(3) of the Tribunals, Courts and Enforcement Act 2007

The Supreme Court reiterated that the United Kingdom is bound by the Charter of Fundamental Rights, in particular, Article 21(1).

In addition, the Court noted that according to Article 52(1) CFEU, read together with Article 47 CFREU (which reaffirms the general principle of effective judicial protection), the means of achieving the Fee Order’s aims had to be proportionate. In applying this standard, the Supreme Court took note, pursuant to Article 52(3) CFREU, of the case law of the ECtHR on proportionality in relation to the right to a fair trial enshrined in Article 6(1) ECHR.

• Equivalence
• Effectiveness
• Proportionality

This principle was relied on before the Court of Appeal, but was not pursued before the Supreme Court.

An important issue addressed by the Court was whether the Fees Order interfered with the right to effective judicial protection by placing disproportionate limitations on this right.

Following CJEU and ECtHR case law, the Supreme Court assessed the proportionality of the Fee Order’s limitation on the right to effective judicial protection in relation to its aim.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
• Dialogue between high court - lower instance court at national level

• CJEU C-268/06, Impact v Minister for Agriculture and Food
• CJEU C-439/14 and C-488/14, SC Star Storage SA v ICI
• CJEU C-279/09, DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland

• Teltronic-CATV v Poland, Application No 48140/99
• Kniat v Poland, Application No 71731/01
• Kordos v Poland, Application No 26397/02

Conform interpretation with EU law as interpreted by the CJEU

Proportionality

To receive guidance on the interpretation of the principles of effective judicial protection and proportionality

Additional notes on the decision

The Fees Order was quashed.