The High Court had rejected both of Unison's previous applications ([2014] EWHC 218 (Admin); [2014] EWHC 4198 (Admin), www.practicallaw.com/4-597-2467). In this latest round of the litigation, Unison relied on three main arguments: that the new rules breached the principle of effectiveness; the rules amounted to indirect discrimination; and that there had been a failure to consider the public equality duty.

Principle of effectiveness. Unison argued that it was unlawful to introduce fees which make it impossible or excessively difficult to enforce EU employment rights. While the court acknowledged the compelling nature of the statistics produced by Unison, it concluded that it was not sufficient to show that the introduction of fees had resulted in an overall decline in claims. They would need to be accompanied by evidence of the actual affordability of the fees in the financial circumstances of typical individuals in order to allow the court to reach a reliable conclusion that the fees will be realistically unaffordable in some cases.

Indirect discrimination. Unison argued that the fees regime indirectly discriminates against women, given that women tend to pursue the more expensive type B claims. Agreeing with the decision of the High Court, the court held that to the extent that this disproportion existed, it could be objectively justified. Further, the statistics did not support Unison's argument that there was a difference between the proportion of type B claimants who were women and the proportion of women in the workforce.

Public equality duty. Unison considered that there had not been a proper assessment of the public equality duty before the introduction of fees. However, the court determined that its role went no further than to identify whether essential issues had been properly considered with rational conclusions reached, and so dismissed Unison's argument in this regard.

Unison intends to appeal to the Supreme Court. However, even if it fails in the Supreme Court, the survival of the fees regime is by no means assured.

The impact of the introduction of fees has been significant. Figures vary, but it appears that the number of claims issued has fallen by between 65% and 75% since the introduction of the fees regime.

A survey published by Citizen's Advice indicated that 82% of those who participated in the survey would be less likely to bring, or would be deterred from bringing, a claim by the current fees regime if they were having issues at work (www.citizensadvice.org.uk/about-us/policy/policy-research-topics/work-policy-research/fairer-fees/). In certain circumstances, this may encourage the use of alternative dispute resolution in the workplace, such as mediation. However, those businesses less disposed to investing time and expense in dealing with workplace disputes may be more inclined to wait to see whether an individual is prepared to pay an issue fee and, later, a hearing fee.

It is noteworthy that, although there has been a decline in claims, there has not been a shift in the rates of success of claims. This suggests that a number of claims that would have been successful are not being pursued. While it is likely that the fees regime will have deterred individuals from pursuing vexatious claims, it is also probable that increased fees have also affected those with meritorious claims.

The question remains as to whether the same reduction in claims without merit could have been realised through rigorous case management by the tribunals; that is, by striking out weak cases at an earlier stage and more readily imposing deposit orders and costs.

It is also possible that the introduction of fees has affected the number of claims settled without a full hearing. A claimant who is due to pay a hearing fee and who is either unable to afford this (and does not qualify for remission), or feels unable to take the financial risk of losing the fee in the face of an uncertain outcome at hearing, may be more willing to settle a claim on terms favourable to the business.

Similarly, employees who cannot afford tribunal fees may also be more likely to accept terms of a settlement agreement that are favourable to the business, in the knowledge that they could not afford to pursue a claim in any event.

While businesses may welcome the benefits of the introduction of fees, the regime is not just under threat from Unison. There are a number of reviews and consultations, some ongoing, that will affect decisions relating to the future of the fees regime, namely:

In addition, the Scotland Bill 2015-16, which will devolve more powers to the Scottish Parliament, including control of the employment tribunals system, is part-way through the House of Commons. The Scottish government has already confirmed that it intends to abolish tribunal fees in Scotland; time will tell whether England and Wales follow suit.