Unison has promised to take its fight against employment tribunal fees to the Supreme Court after the Court of Appeal rejected its challenge yesterday. Following the introduction of fees in July 2013, there has been a 56% drop in tribunal claims according to the Ministry of Justice’s own statistics. The union argued that the government’s new fees regime was having an adverse impact on the ability of workers to have access to justice.
Giving judgment yesterday, Lord Justice Underhill said that ‘like both Divisional Courts’ he had ‘a strong suspicion’ that such a drop off in cases was ‘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”’. He said that he was tempted by Unite’s argument ‘that the figures speak for themselves’. ‘But in the end I do not think that that is legitimate,’ he continued. ‘The truth is that, looked at coolly, there is simply no safe basis for an untutored intuition about claimant behaviour or therefore for an inference that the decline cannot consist entirely of cases where potential claimants could realistically have afforded to bring proceedings but have made a choice not to.’
‘In my view 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.’
Lord Justice Underhill
Unison’s general secretary Dave Prentis described the ruling as ‘a huge disappointment and a major setback for people at work’. ‘There is stark evidence that workers are being priced out of justice and it is women, the disabled and the low-paid who are being disproportionately punished,’ he said. An application for permission to appeal to the Supreme Court has been made.
Meanwhile, the Law Society is calling on solicitors to respond to the MoJ consultation on increasing court fees. Chancery Lane ‘wants your thoughts about how these proposals will affect you, your firm, your clients and community’.
It is looking for ‘real-life examples and case studies’ demonstrating:
- the impact that the March 2015 increases have had, including any instances where clients have not issued proceedings because of the increased cost, and
- the impact that the further increases set out in the consultation would be likely to have if implemented.
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