UNISON has vowed to “take its battle to the Supreme Court” after the Court of Appeal rejected its appeal against the Government’s introduction of employment tribunal fees. UNISON appealed on the basis of three issues set out below, each of which were rejected by the Court.

1. Breach of the Principle of Effectiveness. The Fees Order breaches the EU principle of effectiveness by making it impossible in practice, or excessively difficult, for claimants to enforce EU rights transposed into domestic law.

The Court stated that it had a suspicion that such a large decline in the number of cases is unlikely to be accounted for entirely by cases of “won't pay” and that it must also reflect at least some cases of “can't pay”. But the decisive point against the appeal on this issue, is that this is not a claim arising out of the circumstances of a particular [claimant’s] case but a challenge to the lawfulness of the Fees Order as a whole.  If claimants who are realistically unable to afford to pay the fees, but who fall outside the primary criteria for remission, can obtain remission by establishing “exceptional circumstances” under the relevant provision in the Order, then no breach of the effectiveness principle would arise, because the regime would not inherently result in them being unable to bring Tribunal proceedings.

2. Indirect Discrimination. The Fees Order is indirectly discriminatory against claimants with protected characteristics under EU and domestic law, but for simplicity the focus was on women.

The Court held that the previous decision made by the Divisional Court was one that it was plainly open for it to make, i.e. the onus is on UNISON to show that there has been discrimination, but that burden had not been discharged and even if it has, the extent of any adverse impact is very small

3. The Public Sector Equality Duty. The Lord Chancellor acted in breach of the duty imposed by S.149 of the Equality Act 2010.

The Court highlighted that the Equality Impact Assessment (EIA) had identified that there would be no direct discrimination as fees would apply to all. As for indirect discrimination the EIA acknowledged that fees may have a greater impact on BME groups, women, younger people and disabled people but considered that it was unlikely that they will experience any particular disadvantage as the fee remission would likely lessen the impact. Furthermore, the availability of free Acas conciliation would lessen the impact for all irrespective of their financial position because if offers an alternative to making a claim. Therefore, the EIA complied with the Public Sector Equality Duty because it was clear that the impact of fees had been assessed and addressed.

In its judgment the Court referred to the Lord Chancellor’s current ‘internal’ Government review of the fee regime and said: “The decline in the number of claims in the Tribunals following the introduction of the Fees Order is sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by claimants being realistically unable to afford to bring proceedings the level of fees and/or the remission criteria will need to be revisited”.

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