The CA held that the ET fee system was not indirectly discriminatory to women, its introduction did not breach any of the Government's obligations under the public sector equality duty and that it did not breach the European principles of effectiveness and equivalence.
The CA acknowledged that a proper balance needs to be struck between the right to charge a fee and the right to bring a claim and that the balance would not be struck if the fee was disproportionate. The CA also acknowledged that the "dramatic" fall in ET claims was unlikely to be attributable just to people who "won't pay" a fee and must also include those who "can't pay". However, it was the lack of specific evidence, in particular real examples of individuals who "can't pay" the fees due, that meant that Unison failed to demonstrate a breach of the principle of effectiveness.
Lord Justice Underhill did however comment on the Lord Chancellor's forthcoming review of the ET fee system stating that "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."
We await the Lord Chancellor's review with interest.