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01st September 2015

The Court of Appeal dismisses Unison’s challenge to employment tribunal fees.

The ongoing challenge by Unison as to the lawfulness of fees in the employment tribunal system has been dismissed by the Court of Appeal (R (Unison) v Lord Chancellor and another [2015] EWCA Civ 935.) Unison initially challenged the introduction of fees in the employment tribunal by way of judicial review in 2014.

The ongoing challenge by Unison as to the lawfulness of fees in the employment tribunal system has been dismissed by the Court of Appeal (R (Unison) v Lord Chancellor and another [2015] EWCA Civ 935.) Unison initially challenged the introduction of fees in the employment tribunal by way of judicial review in 2014. Unison claimed that the fees regime denied claimants’ access to justice but this was dismissed by the High Court on the basis that there was not yet sufficient evidence to show the impact of the new fees regime. Unison appealed to the Court of Appeal on the basis that: Fees in the employment tribunal breached the principle that claimants should have access to justice. Unison relied upon the statistics showing the decline in the number of claims that have been brought since fees were introduced and argued that this showed that claimants could not afford to bring claims and as such their access to justice had been denied. The fees regime is indirectly discriminatory on the basis that claimants that wish to pursue a discrimination claim are required to pay a higher fee. The Lord Chancellor had breached his duty to have due regard to the need to eliminate discrimination by imposing the two tier fees regime. The Court of Appeal dismissed Unison’s appeal on the basis that there was still a lack of evidence to support Unison’s claims. The Court of Appeal noted that, whilst there had been a significant decline in the number of claims being brought in the tribunals, these figures alone did not necessarily mean that claimants were unable to pay the fees. There was not, therefore sufficient evidence to support that claimants were unable to have effective access to justice. In relation to the claims in respect of discrimination, the Court of Appeal held that the two-tier fees system was objectively justified. The higher fee in respect of discrimination claims reflected the greater demand such claims placed on tribunal resources. Unison has sought further permission to appeal to the Supreme Court. In the meantime, the Ministry of Justice is currently conducting a formal review on the impact of tribunal fees the result of which is expected later in the year. For more information please visit our Employment Law service page or contact Gemma Hill on 01604 233233, or alternatively click here to email Gemma.

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