The UK's largest union has pledged to continue a legal battle over the introduction of what it describes as "unfair and punitive" fees to be paid by workers wanting to bring tribunal proceedings against their employers.
Unison's vow to press on with the action came after it failed to persuade two judges at the High Court in London to quash what it argued was an "unlawful" order imposing fees for employment tribunals for the first time.
Lord Justice Moses and Mr Justice Irwin, announcing their decision today to dismiss Unison's judicial review application, said the "fundamental flaw in these proceedings is that they are premature and that the evidence at this stage lacks that robustness necessary to overturn the regime".
Under changes introduced last July, workers in the UK are now charged a fee to bring a claim, a fee if the claim is heard and a further charge if they want to appeal against a decision.
The court's decision was welcomed by the Government, while Unison announced it now wants its case looked at by the Court of Appeal. Some employment lawyers commented that the ruling helps provide clarity for employers.
Unison general secretary Dave Prentis said: "Today's decision is very disappointing but we will fight on and take our very strong arguments into the Appeal Court. We provided clear evidence that since the fees were introduced, the number of employment tribunal cases has collapsed. It is doubly disappointing therefore that it was decided that our case had been taken too early."
He commented: "The sad fact is that workers are being treated unfairly now. They should not be made to wait in the vain hope that the Government will act on the falling number of cases and scrap the fees altogether.
"We are pleased that pressure from our case did win a significant concession from Government so that workers winning their claims are entitled to have the fees reimbursed by their employers.
"The bottom line is that the Government should not put a price on justice. We strongly believe that these fees are unfair and should be dropped, which is what we will argue in the Court of Appeal."
The High Court action was opposed by Lord Chancellor Chris Grayling. The Government says the aim of introducing fees "is to transfer some of the approximate £74 million cost of running the employment tribunals and the Employment Appeal Tribunal from the taxpayer to those who use the system".
After the ruling, Justice Minister Shailesh Vara said: " We are pleased that the court has dismissed this application on all of the grounds raised.
"It is not fair on the taxpayer to foot the entire £74m bill for people to escalate workplace disputes to a tribunal. We want people, where they can afford to do so, to make a contribution.
"It is in everyone's interest to avoid drawn out disputes which emotionally damage workers and financially damage businesses. That's why we are also encouraging quicker, simpler and cheaper alternatives."
Unison's challenge was against the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 , which it argued was "indirectly discriminatory and unlawful" and "ought to be quashed".
During the hearing of the case last year, the union's QC said the effect of the order was that any claim in the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) "may only be instituted and continued to hearing upon payment of fees, subject only to an individual applying for, and then qualifying for, a remission..."
Karon Monaghan said Mr Grayling "relies on the remission arrangements which he contends 'should negate or substantially reduce the impact on the claimants with limited financial means, by wholly exempting or providing them with discounts on a sliding scale'", but argued: " The remission arrangements are not adequate for this purpose."
Depending on the type of case, it will cost £160 or £250 to lodge a claim, with a further charge of either £230 or £950 if it goes ahead to a hearing. Discrimination and unfair dismissal cases fall into the higher category of fees. In the EAT, the fees are £400 to lodge an appeal and £1,200 for a full hearing.
The High Court judges said in their written ruling that they suspected the imposition of the fee regime "will have a disparate effect on those within the protected classes", but said it was "not possible as yet to gauge the extent of the impact".
Referring to the "fundamental difficulty with the whole of this case", Lord Justice Moses said: "Brought as it was in the belief that the lawfulness of the regime had to be challenged as a matter of urgency, and in any event within three months, the court has been faced with judging the regime without sufficient evidence, and based only on the predictions of the rival parties throughout and after the hearing."
He said: "Quite apart from the continuing obligation to fulfil the duties identified in the Equality Act, the Lord Chancellor has himself undertaken to keep the issue of the impact of this regime under review.
"If it turns out that over the ensuing months the fees regime as introduced is having a disparate effect on those falling within a protected class, the Lord Chancellor would be under a duty to take remedial measures to remove that disparate effect and cannot deny that obligation on the basis that challenges come too late.
"It seems to us more satisfactory to wait and see and hold the Lord Chancellor to account should his optimism as to the fairness of this regime prove unfounded.
"We believe both Unison and the Commission (The Equality and Human Rights Commission) will be, and certainly should be, astute to ensure that accurate figures and evidence are obtained as to the effect of this regime."
Lord Justice Moses added: "No doubt the Lord Chancellor will also be doing the same, if he is successfully to resist a future challenge."
He said: "This court did not find itself in any position accurately to collate the information, still less the evidence, in order to achieve a just resolution. The application is dismissed."
Emma Satyamurti, from Leigh Day, a law firm that acts exclusively for claimants, said: " People bringing claims are often out of work and therefore not in a position to pay upfront fees.
"The criteria for remission are exacting - the majority of people wishing to bring claims are not eligible. This leaves a potentially significant number of people who have been unfairly treated without an effective remedy.
"Groups such as those on maternity leave, part-time workers, predominantly women, and people with disabilities are likely to be disproportionately affected.
"The current regime is clearly not compatible with a fair and accessible justice system. Therefore we welcome Unison's planned appeal, which will allow the issues and evidence to be looked at again in the light of a longer period since the introduction of fees and more data on their impact."