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The Court of Appeal has dismissed the trade union Unison's challenge to the lawfulness of fees in employment tribunals and the Employment Appeal Tribunal (EAT).
Fees were introduced in employment tribunals and in the EAT from 29 July 2013. Individuals can, however, apply for a remission of fees, in full or in part, which takes disposable capital and monthly income into account.
Unison has challenged the legality of the fee system by making a judicial review claim. This was initially heard in the high Court, but the claim was dismissed.
Unison appealed to the Court of Appeal (CA) and argued, amongst other things, that the fee system prevented individuals and potential claimants from having access to justice.
The appeal was, however, dismissed. The CA agreed with the High Court that evidence of a dramatic decline in the volume of claims was not in itself enough to establish that potential claimants were unable to pay the fees which prevented them from having access to justice in respect of employment claims. The CA did comment that it was 'troubled' by the major decline in employment tribunal claims. However, it found that there was a lack of evidence as to the actual affordability of fees based on the financial circumstances of individual potential claimants.
The CA also referred to the government's review of fees which is currently in progress, and commented that the statistics showing a significant drop in the number of claims is sufficient 'to merit a full and careful analysis of its causes'. It was indicated that if the drop in claims can be accounted for, even in part, by potential claimants being realistically unable to afford the fees, then the fee system would need to be 'revisited'.
Unison has applied for permission to appeal to the Supreme Court and we will keep you updated on how the case progresses.