On 26 August it was reported that UNISON's latest challenge to Employment Tribunal fees had failed. By way of a reminder, UNISON's first judicial review in the High Court failed due to lack of evidence of the impact the fees were having. However, UNISON raised a fresh judicial review. At the time of raising the second judicial review, more detailed Ministry of Justice figures showing the decline in Tribunal claims were available and this information was used by UNISON as evidence that the fees were denying access to justice. UNISON, though failed again on the basis that there was no evidence that the fees had prevented particular individuals from raising claims because they could not afford the fees.

It seems UNISON has been unsuccessful in the Court of Appeal for the same reason. The Court of Appeal stated that “the case based on the overall decline in claims cannot succeed by itself. It needs to be accompanied by evidence of the actual affordability of the fees in the financial circumstances of (typical) individuals. Only evidence of this character will enable the Court to reach a reliable conclusion that the fees payable under the Order will indeed be realistically unaffordable in some cases.”

UNISON has said that they will seek to appeal this decision to the Supreme Court.

As we mentioned in our August eBulletin, the Government has launched a review into Employment Tribunal fees. The Court of Appeal referred to this and commented that the decline in Tribunal claims "is sufficiently startling to merit a very full and careful analysis of its causes".

We have also mentioned before certain Tribunal powers in relation to administration and management of Tribunals are expected to be devolved to the Scottish Parliament. In a very recent development, the Scottish Government announced yesterday their intention to abolish Tribunal fees in Scotland. As such, we could end up with a situation where there are no Tribunal fees for claims in Scotland but fees where the claim is raised in England & Wales.