Dismissal of Unison’s third appeal represents ‘major setback for people in work’
Unison’s legal challenge to overturn the introduction of tribunal fees has been rejected for the third time after the Court of Appeal said there was insufficient evidence that claimants could not afford to pay the costs.
The union has long-argued that the introduction of fees, which require claimants to pay up to £1,200 to bring a case, is directly responsible for the dramatic decline in the number of cases reaching tribunal.
According to figures from the Department for Business, Innovation and Skills (BIS) the total number of claims brought before an employment tribunal has fallen by almost 70 per cent since the introduction of fees. The number of claims were down from 340,000 in the first three months of the 2013-14 financial year to just over 110,000 in the third quarter of 2014-15.
While Lord Justice Underhill, the judge overseeing the hearing, said the drop in cases was “troubling”, he added, “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 (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,” he added.
The union has also argued that the fees system has a disproportionately adverse impact on women, or those with protected characteristics. A claim that was also rejected by the court on Wednesday 26th August 2015.
“The introduction of the proposed fee structure would not directly discriminate against people with a protected characteristic, because the fee changes would apply to all people irrespective of any protected characteristic; i.e. there is no less favourable treatment because of a protected characteristic,” the tribunal proceedings read.
Unison general secretary Dave Prentis said the latest decision was “a huge disappointment and a major setback for people at work”.
“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,” he added.
In June 2015, the government launched a review into the impact of tribunal fees, with the aim of discovering “how effective the introduction of fees has been at meeting the original objectives, while maintaining access to justice”.
The results of this review are expected later this year.
Charles Urquhart, partner at law firm Clyde and Co, said: "Employers can probably be more relaxed in the knowledge that the government will be reviewing its own law and that, as a result, the fees regime (in one form or another) is probably here to stay – at least for the duration of the present government.”
However, a CIPD survey published earlier this year suggested that employers were split over the future of tribunal fees.
Unison has vowed to appeal its case to the Supreme Court.