The Court of Appeal has dismissed a third bid by Unison to overturn the introduction of Employment Tribunal fees.
The Court dismissed the union’s case for a judicial review of the fees on the grounds of insufficient evidence.
Employment Tribunal fees have been the subject of controversy since their introduction in July 2013. The sharp decline in the number of cases going to tribunal has led many observers to question whether people are being ‘priced out’ of the legal system.
Unison argued that this decline is due to the fact that claimants now have to pay anything up to £1,200 to bring a claim to tribunal. The fees make it impossible for some people to bring a claim, meaning that the law breaches the EU legal principle of effectiveness.
According to the Department for Business, Innovation and Skills (BIS), the number of claims going to the Employment Tribunal fell from 340,000 at the start of the 2013-14 financial year to just over 110,000 in the third quarter of 2014-15. This is a drop of 70%.
Ruling on the case, Lord Justice Underhill acknowledged that the fall in cases was “troubling”, but went on to say that “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 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 court also rejected a claim by Unison that the fees system is discriminatory.
Regardless of this ruling, the future of Employment Tribunal fees is far from certain.
Unison has announced that it intends to pursue its case in the Supreme Court, whilst Lord Justice Underhill’s admission that the case failed due to a lack of evidence opens the door for individuals to claim if they can prove that they have been unable to afford the fees. Meanwhile, both the Government and the Commons Justice Select Committee are carrying out independent reviews into the suitability and pricing of the fees.
Most decisively however, this week the Scottish Government set out plans to remove tribunal fees completely.
