The Court of Appeal has handed down its decision in Unison’s challenge to the legality of employment tribunal fees.
The court held that while the dramatic reduction in the number of claims is troubling, a challenge to the legality of the fee regime cannot succeed unless the court is presented with sufficient evidence that the fee regime has made raising a claim unaffordable in some cases. While in principle a challenge to the legality of fees may be possible, the lack of evidence from people who have personally been affected by the introduction of fees seems to be preventing Unison’s challenge from getting off the ground.
The court rejected Unison’s argument that the fee regime was illegal as it denied people a remedy under EU law and noted that there is a remission scheme available to those who are unable to pay fees.
Unison also claimed that the fee regime was indirectly discriminatory against women and breached the public sector equality duty. For the most part, the court did not find that Unison had established that there was a disparate impact. Where the court did accept that there was a disparate impact, it nonetheless considered that the introduction of the fee regime was justified and therefore not unlawful.
Despite dismissing the challenge, the court did state its concern about the reduction in the number of employment tribunal claims presented since fees were introduced. The government has committed to reviewing the fee regime and the outcome of that review is keenly awaited.
Unison intends to seek leave to appeal the decision to the Supreme Court.
A copy of the Court of Appeal’s decision is available here.