The Court of Appeal has dismissed Unison's appeal against the decision of the High Court that it had failed to make its case that the introduction of Employment Tribunal (ET) fees in July 2013 was unlawful.
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 had announced that it 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.