UNISON has said it will seek permission to appeal last week’s decision by the Court of Appeal rejecting its challenge to the introduction of tribunal fees.

Whilst acknowledging that the drop in the number of claims brought in tribunals before and after the introduction of fees in July 2013 was “troubling” and must reflect some cases of “can’t pay”, the Court was not convinced that “the figures speak for themselves”. Instead, it held that there was no “safe basis” to infer from the decline that it did not consist entirely of cases where potential claimants could have afforded to bring proceedings but chose not to.

UNISON had argued that the requirement to pay fees violated the “principle of effectiveness” as having to pay a fee made it “virtually impossible or excessively difficult” for claimants to exercise rights conferred by EU law. In addition, it argued that the fees violated the “principle of equivalence” since the requirement to pay fees (or fees at the levels set by the government) meant that the procedures adopted to enforce rights derived from EU law were less favourable than those governing similar domestic actions.

The Court, however, concluded that even if some potential claimants could not realistically afford the fees, a case based on the overall decline in claims could not succeed by itself. Instead it needed to be accompanied by evidence of the actual affordability of the fees in the financial circumstances of typical claimants. Only evidence of this kind would allow the Court to reliably conclude that the fees payable under the Order would indeed be realistically unaffordable in some cases. As such, the Fees Order did not breach the principle of effectiveness.

UNISON also asserted that the Lord Chancellor had breached the public sector equality duty and that the imposition of higher fees in discrimination claims was indirectly discriminatory. However, the Court of Appeal rejected UNISON’s arguments that the introduction of fees constituted indirect discrimination and dismissed the challenge to the public sector equality duty.

Neil Todd of Thompsons Solicitors commented: “The Court of Appeal’s decision is extremely disappointing given that the number of employment tribunal claims declined by approximately 80% following their introduction in July 2013 and the Court’s view that such a decline may be due to the fact that some people are unable to afford the fees. However, the fight is not at an end and we wait with keen interest as to the outcome of any appeal”.

To read the judgment, go to: http://www.bailii.org/ew/cases/EWCA/Civ/2015/935.html