The trade union UNISON has lost its Court of Appeal case against the introduction of employment tribunal fees in GB. Although fees do not apply to NI cases, their introduction into employment cases in GB has coincided a dramatic drop in the number of employment tribunal applications in that jurisdiction. UNISON argued the two were more than coincidence and that the introduction of fees was unlawful and contrary to EU law and in their original judicial review argued that many claimants would be unable to afford to bring a claim in tribunal, thereby removing the effective remedy required in law.

That may be so but the difficulty for UNISON is that there was little qualitative or quantitative evidence before fees were introduced and comparatively little time has passed since the measures were introduced in 2013 to prove cause and effect. Underhill LJ, giving the lead judgement said:

"It is a strong thing to strike down legislation on the basis of disputed predictions as to its effect when the passage of a comparatively short period of time will prove their correctness or otherwise."

Unfortunately for the union and claimants who cannot afford to take tribunal claims, Lord Justice Underhill had sympathy and suspected they may in part be correct he but wanted more evidence to allow the court to conclude that fees should be struck out:

"I have found this part of the case troubling. Like both Divisional Courts, I have a strong suspicion that so large a decline is 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"; and I have accordingly been tempted by [Unison's barrister] Ms Monaghan's submission that the figures speak for themselves. But in the end I do not think that that is legitimate. 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. 

But in fact the difficulty goes further than that. Even if it really were an irresistible inference from the decline in claims that at least some potential claimants could not realistically afford the fees, there is still no basis for forming any reliable view about the numbers of such cases, or how typical they may be; and, for reasons which will appear, that is an important matter. 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."
http://www.bailii.org/ew/cases/EWCA/Civ/2015/935.html 

UNISON has vowed to take its battle to the Supreme Court:
https://www.unison.org.uk/news/press-release/2015/08/unison-to-continue-fight-over-employment-tribunal-fees-in-supreme-court/?