The trade union Unison has failed in its attempt to have the Tribunal fees regime (introduced in July 2013) declared unlawful.

The number of Tribunal claims has fallen dramatically since the fee regime was first introduced.  Statistics show that, overall, there was a decrease of 52% of single claims received in 2014/15 compared to 2013/14 with a fall of up to 83% of equal pay claims since the introduction of the fees.

This material reduction in the number of claims prompted Unison to question whether the fee regime was preventing claimants from being able to afford to bring claims. In consequence, they challenged the new rules by bringing judicial review proceedings.  After the High Court rejected their challenge, Unison appealed to the Court of Appeal – the case coming before that court in June 2015.  At the appeal, Unison argued that the reduction in the number of claims showed the new rules were impeding the ability of individuals to enforce their employment rights.  This was despite the new remissions system which was designed to help claimants with low income and savings to bring employment claims should they need to. Unison also argued that the decline in the number of equal pay and sex discrimination claims indicated that the high fees could be indirectly sex discriminatory.

The Court of Appeal has now rejected Unison’s appeal, ruling that although the statistics indicated that a large proportion of claimants had been deterred from bringing claims, they did not show that it was impossible for any particular individual to bring a claim. The Court similarly rejected Unison’s other grounds for objection including the arguments based on sex discrimination.

Whilst this decision is good news for employers, as the fee related barrier to entry to bring employment tribunal claims remains in place, it will not be welcomed by low paid employees who feel obligated to bring a claim but who may be priced out of doing so.

What next?

Outside of this appeal, the Lord Chancellor is currently conducting his own review of the fees regime with a brief to “make recommendations for any change to the structure and level of fees for proceedings in the Employment Tribunal and the Employment Appeals Tribunal".  This review is expected to be concluded sometime later this year. It is worth noting that in the Unison appeal, the Court made it clear that its conclusions should not be seen as pre-judging the outcome of this review.

We understand that Unison will be seeking permission to appeal to the Supreme Court. Bearing in mind, however, the lack of success so far, potential claimants might be inclined to pin more hope on the Lord Chancellor's review rather than any future or further challenge by Unison.  Employers, on the other hand, can probably be more relaxed in the knowledge that the Government will be reviewing its own law and that, as a result, the fee regime (in one form or another) is probably here to stay – at least for the duration of the present Government.

Click here to read the Court of Appeal's ruling.