Employment lawyers received disappointing news last week with the decision of the Court of Appeal to dismiss Unison’s claim seeking to overturn the Employment Tribunal Fees regime. Lord Justice Underhill stated that Unison would need to provide concrete evidence that the reduction in the number of claims issued was due to the updated fee scheme. This decision, and reasoning, was met with incredulity by commentators; particularly given the significant reduction in the number of claims since the introduction of fees in July 2013. Given this dramatic decrease in the number of claims many hoped that the overall evidence would be seen to speak for itself. The Court was “tempted” by this argument but failed to make the necessary causal connection that is apparent to many.
The promised review of fees was, of course, mentioned by Lord Justice Underhill: "The fact that the evidence put before this court has not satisfied me that there has been a breach of the effectiveness principle should not, and I am sure will not, preclude the Lord Chancellor from making his own assessment, on the basis of the evidence to which he will have access, on… 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." As has been noted in a previous blog many working in employment law have significant doubts about the scope of the proposed review and the assumptions being made when entering into it. Whether the comments by Lord Justice Underhill will have any bearing on the review is another matter, though some may consider that little hope can be held out when considering the Government’s track record on review and consultations within the legal sector.
The good news is that the claim will be taken to the Supreme Court and that evidence appears to be being gathered from people who have not brought claims solely due to the fees. Many employment lawyers remain optimistic that common sense will prevail and that the unjust fees regime will, at the least, be substantially amended.