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When Employment Tribunal (ET) fees were introduced in July 2013, the public service trade union Unison was quick to challenge the lawfulness of the new regime on the basis that it would make it 'virtually impossible, or excessively difficult' for many people of modest means to exercise their right to bring an ET claim and would discriminate against employees with a protected characteristic. The High Court dismissed the challenge. Although there has been a substantial year-on-year fall in the number of ET claims received since fees were introduced, the Court held that Unison had failed to provide evidence of 'actual cases' in which workers have been denied access to justice as an effective way of redressing wrongs.
Unison was granted permission to take its case to the Court of Appeal and the hearing took place a few days after the Government announced its intention to carry out a wide-ranging review of the fees system.
The Court of Appeal has now handed down its judgment, dismissing Unison's appeal. In Lord Justice Underhill's view, the case based on the overall decline in the number of ET claims could not succeed by itself. It needed to be supported by evidence of the actual affordability of the fees in individual cases for the Court to reach a reliable conclusion that the fees are realistically unaffordable in some cases. He also dismissed the discrimination and public sector equality duty arguments put forward by Unison.
The Court acknowledged that the Government would be carrying out its own assessment of the fees system, to determine whether its original objectives have been met, and described the decline in the number of ET claims since it was introduced as 'sufficiently startling to merit a very full and careful analysis of its causes'. Underhill LJ went on to say that if the Lord Chancellor decides, based on the evidence at his disposal, that there are good grounds for concluding that part of the decline in numbers 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'.
Unison has announced its intention to seek permission to appeal to the Supreme Court.