The UK Supreme Court has unanimously ruled that the government was acting unlawfully and unconstitutionally when it introduced fees for bringing an employment tribunal claim.
The proceedings for judicial review were brought by the trade union UNISON, the appellant, supported by the Equality and Human Rights Commission and the Independent Workers Union of Great Britain. The issue in this appeal was whether the fees imposed by the Lord Chancellor in respect of proceedings in Employment Tribunals (ET) and the Employment Appeal Tribunal (EAT) were unlawful. The Fees Order which were introduced in 2013 were aimed at cutting the number of unmeritorious claims and reduce the number of claims to an overburdened system. The fees, ranging from £390 to £1,200 depending on the type of the case, have led to a 79% reduction in cases going to tribunals over three years.
The appellant challenged the introduction of the fees on three grounds. First, the prescribed fees amounted to an unjustified interference with the right of access to justice under both common law and EU law. Second, it frustrated the operation of Parliamentary legislation granting employment rights. Third, it discriminated against women and other protected groups, who are more likely to bring claims and are therefore disproportionately impacted by the higher fees applicable to such claims. The government argued that the fees should be imposed because users needed to make a contribution to the costs of the service and to deter unmeritorious claims. The appellant was unsuccessful before the High Court and the Court of Appeal, both courts found that there was insufficient evidence that claimants had been deterred from bringing claims purely because of the introduction of fees. The Supreme Court, however unanimously upheld the appellant’s claim.
According to the Supreme Court the fees order were “unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful, and must be quashed”. The Court emphasised that courts exist in order to ensure that laws made by the democratically elected Members of Parliament are properly enforced, and that an unimpeded right of access to the courts is therefore a constitutional necessity and fundamental to the rule of law. The Court found there had been a breach of EU law and the fees were unlawful because they disproportionately limited a person’s ability to access an effective remedy via an employment law tribunal. Finally, the Court concluded that the fees were indirectly discriminatory because the higher fees put women at a particular disadvantage, given that a higher proportion of women bring discrimination claims. According to the Court the fees were contrary to the Equality Act 2010 and was not a proportionate means of achieving the stated aims of the Fees Order.
As a result of the Supreme Court’s judgment, Employment Tribunal and the Employment Appeal Tribunal fees are no longer payable. The Government will have to reimburse a reported £32 million to claimants.
Click here for the full judgement in R (on the application of UNISON) v Lord Chancellor
Further commentary about the case can be accessed here and here.