Unison loses Court of Appeal case on Employment Tribunal Fees

The Court of Appeal has recently dismissed the case brought by Unison challenging the new employment tribunal fees system on the grounds that:

• The fees make it difficult, or even impossible, for some applicants to bring a claim meaning it is unlawful under EU law
• The fees are indirectly discriminatory.

Although the Court of Appeal recognised and was concerned by the evidence of declining employment tribunal claims, they did not believe just these figures alone were enough to substantiate the grounds of appeal brought forward by Unison.

In particular, the court argued that the decline in tribunal rates could be in relation to the introduction of early conciliation with the fees simply making pursuing a claim unattractive opposed to impossible. The court also stated that without supporting evidence of actual individual’s financial circumstances in relation to tribunal fees it was impossible to reach a reliable conclusion as to whether they are unaffordable. The court also upheld the rejection of the argument submitted by Unison in relation to indirect discrimination

In respect of the declining tribunal claims it has been suggested that the government may wish to analyse the cause of this decline in further detail. If it should  find the affordability of fees has a direct impact on declining tribunal rates, the remission criteria when an employee brings a claim is likely to be  revisited but  at present the tribunal fees remain in place.

Unison can appeal to the Supreme Court for a further review.