Unison has lost a further challenge in its bid to overturn the introduction of tribunal fees.
The Court of Appeal dismissed the union’s third appeal for a judicial review of the fees regime, introduced in July 2013, claiming there was insufficient evidence of claimants’ ability to afford the fees to support this.
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Unison has repeatedly argued that a sharp decline in the number of cases being brought to tribunal is due to claimants now having to pay anything up to £1,200, depending on the type of claim brought.
But at today’s hearing, Lord Justice Underhill said that, although he was “troubled” by the drop in cases, “the case based on the overall decline in claims cannot succeed by itself”.
He added: “It needs to be accompanied by evidence of the actual affordability of 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.”
In February 2014, the trade union’s first challenge to the fees system was unsuccessful, with the High Court stressing that it was too early at that point to judge the effectiveness and impact of fees.
In December 2014, a second challenge came before the High Court, with Unison allowed to introduce new statistical information suggesting that certain vulnerable groups, such as single mothers, would be particularly disadvantaged by employment tribunal fees.
At its last hearing in June, Unison argued that a dramatic drop in claims (of 79% in the first year, according to the TUC) had “no obvious explanation, other than the introduction of fees”.
At the latest hearing, the Court pointed out that, because fee waivers are available in “exceptional circumstances”, then it could not be said that the fee system in general was unaffordable.
Unison had argued in previous appeals that the fees system had a disproportionately adverse impact on women, or those with protected characteristics. However, these concerns were also dismissed by the Court.
Lord Justice Underhill observed that the Government has recently committed to a review of the employment tribunal system, which is expected to be completed later this year.
Unison will now seek permission to appeal its case to the Supreme Court.
General Secretary Dave Prentis said: “Today’s decision is a huge disappointment and a major setback for people at work. Many unscrupulous employers will be rubbing their hands together in glee at the news.
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“There is stark evidence that workers are being priced out of justice and it is women, the disabled and the low-paid who are being disproportionately punished.
“Our fight for fairness at work and access to justice for all will continue until these unfair and punitive fees are scrapped.”
