The Court of Appeal has now dismissed Unison's latest appeal against its judicial review application challenging the legality of these fees. However, this is unlikely to be the end of this controversial issue as Unison has sought leave to appeal and we await the outcome of the Government review.
As a brief reminder, Unison lodged an application two years ago calling for a judicial review of the decision made by the Ministry of Justice to introduce fees in the Employment Tribunal and the Employment Appeal Tribunal. The challenge proceeded on a number of bases which included an argument that the introduction of fees was indirectly discriminatory and would have a disproportionately adverse impact on claimants with protected characteristics. In support of this assertion, Unison asked the Court of Appeal to consider the 'shocking' quarterly tribunal statistics published in the first six months following the introduction of fees. These results revealed a 79% decline in the number of employment tribunal claims received in comparison to the same period the previous year.
The appeal was dismissed today by Underhill LJ in the Court of Appeal, despite being "troubled" by the drastic reduction in employment claims. It was held that the introduction of fees was not in itself objectionable and the question was whether the introduction of fees had gone beyond making the lodging of a claim unattractive to making it impossible in practice to pursue a claim. Underhill LJ stated that strongly suspected that the drop in claims was due to those who "can't pay" as opposed to those who "won't pay". However a challenge based solely on notional statistics could not succeed, as there was no clear evidence that the fees system was generally so unaffordable that there was no effective remedy under European Union law for Claimants, taking into consideration the remission system that is in place. In addition, Underhill LJ also dismissed Unison's arguments based on indirect discrimination and the public sector equality. duty.
This may not, however, be the final word as Unison has confirmed that it will seek permission to appeal to the Supreme Court.
Also, as reported in our update on 29 June 2015, (click here) the outcome of the Government's review of these fees is expected to be published late this year. The aim of the review is to consider whether the introduction of fees has met the original objectives, while maintaining access to justice. So this is definitely not the end of the story – watch this space!
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The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
