Unision's attempts to have the Employment Tribunal fees regime quashed have suffered another setback, with the Court of Appeal rejecting the union’s claim that the fees regime is unlawful. Although Lord Justice Underhill said he had a strong suspicion that the large decline in tribunal cases must reflect at least some cases of individuals who cannot, realistically, afford to pay the fees, the appeal could not succeed because there was no evidence before the Court on which it could form any reliable view about the numbers of such cases, or how typical they may be.

Although the government has managed to resist this legal challenge, the longer term future of the fees regime is not secure. Unison plans to apply for permission to take its case to the Supreme Court, so the legal proceedings are not yet at an end. Furthermore, certain aspects of the judgment suggest that there would be scope for separate claims from a real potential claimants who have been unable to afford a fee and who have been denied remission. In the meantime, the Government is carrying out a review of the fees and remission schemes and Lord

Justice Underhill said that if that review reveals good grounds for concluding that part of the large drop in claim numbers is accounted for by claimants being realistically unable to afford to bring proceedings then the level of fees and/or the remission criteria will need to be revisited. Although there is no prospect of fees being abolished following the review, we could still see a meaningful reduction in fee levels, especially given that even some employer groups have acknowledged that the current level of fees is too high.  If fees are not reduced, the SNP is more likely to press for control over tribunal fees in Scotland to be passed to the Scottish Parliament as part of the further devolution plans. The Ministry of Justice is unlikely to welcome the prospect of a significant difference in fees between Scottish Tribunals and those in England and Wales and this is another factor that could be taken into account as part of the current review of the regime. 

Link to judgement http://www.bailii.org/ew/cases/EWCA/Civ/2015/935.html