The Court of Appeal has dismissed the challenge brought by Unison against the introduction of fees in the employment tribunals and the EAT. Unison unsuccessfully argued that fees prevented claimants from having access to justice, that the regime was indirectly discriminatory and that the Lord Chancellor had failed to satisfy the public sector equality duty.
o Unison’s appeal failed due to lack of evidence as to the impact of fees on individual claimants (a theme throughout the litigation). Although the Court of Appeal was struck by the dramatic decline in the volume of claims being brought in the tribunal, it agreed with the High Court that the figures on their own were insufficient to establish that claimants were unable to pay the fees and therefore were unable to have effective access to justice.
o The Court of Appeal concluded that it was objectively justifiable to have a two-tier fees system. Although a larger number of women then men may be obliged to pay the higher rate fees which apply to discrimination claims, this reflected the greater demand such claims placed on tribunal resources.
Unison has sought permission to appeal to the Supreme Court. In the meantime, a formal review on the impact of tribunal fees by the Ministry of Justice is underway with completion of the review expected later in the year. (R (Unison) v Lord Chancellor and another  EWCA Civ 935.)
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