Whilst “troubled” by the sharp decline in employment tribunal claims, Underhill LJ held 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 that the fees payable under the Order will indeed be realistically unaffordable in some cases.”
Whilst accepting that evidence in respect of notional, rather than actual, Claimants could be relevant, Underhill LJ held that the provision in the remission regime allowing for consideration of “exceptional circumstances” meant that it could not be said that the fee system in general was so unaffordable as to mean that there was no effective remedy under European Union law.
He went on to dismiss arguments based on indirect discrimination and the public sector equality duty.
The judicial review application has failed in the Court of Appeal, but Underhill LJ noted the government’s commitment to a review of the fees regime, and observed:
“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.”
Unison have said that they will seek permission to appeal to the Supreme Court.