Employment e-Brief: Unison loses Court of Appeal case

The Court of Appeal has today dismissed Unison’s appeals against judicial review applications which challenged the lawfulness of tribunal fees.

Whilst the Court of Appeal acknowledged that the number of tribunal claims had significantly reduced since the introduction of fees, Underhill, LJ, who gave the leading judgment in the case was unable to accept Unison’s submission that “the figures speak for themselves”, stating that:

“In my view the case based on the overall decline in claims cannot succeed by itself. It needs to be accompanied by evidence of the actual affordability of the fees in the financial circumstances of (typical) individuals. Only evidence of this character will enable the Court to reach a reliable conclusion that that the fees payable under the Order will indeed be realistically unaffordable in some cases.”

The other elements of the appeal in relation to indirect discrimination and public sector equality duty were also dismissed.

Unison have said that they will be seeking permission to appeal to the Supreme Court.

Underhill LJ was keen to point out that in June 2015, the Lord Chancellor announced a post-implementation review on fees which would “consider how effective the introduction of fees has been in meeting the original financial and behavioural objectives while maintaining access to justice” and stated that:

“The fact that the evidence put before this Court has not satisfied me that there has been a breach of the effectiveness principle should not, and I am sure will not, preclude the Lord Chancellor from making his own assessment, on the basis of the evidence to which he will have access, on that question. The decline in the number of claims in the Tribunals following the introduction of the Fees Order is sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by claimants being realistically unable to afford to bring proceedings the level of fees and/or the remission criteria will need to be revisited.”,

Tribunal fees are therefore here to stay for the time being.  However, this is unlikely to be the end of this matter, so watch this space…

If you would like to discuss this case further, please contact Clare Moore our employment legal assistant on 01274 202 172 or clare.moore@gorsdonsllp.com