26 Jul 2017

The Supreme Court has today handed down its decision in R (on the application of UNISON) v Lord Chancellor. The issue was whether fees imposed by the Lord Chancellor in respect of proceedings in employment tribunals (ETs) and the Employment Appeal Tribunal (EAT) are unlawful because of their effects on access to justice.

Fees were imposed in July 2013 under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (Fees Order). Claimants have to pay up to £1200 to issue a claim and have it heard in the ET. Fees are also payable for bringing an appeal in the EAT. Fees can be fully or partially remitted depending on the income and capital of the claimant and their partner, and the number of children they have. A fee can also be remitted in exceptional circumstances.

UNISON applied for a judicial review of the Fees Order and argued that it was not a lawful exercise of the Lord Chancellor's statutory powers because the fees interfered unjustifiably with the right of access to justice under the common law and EU law, frustrated the operation of legislation granting employment rights, and discriminated unlawfully against women and other protected groups.

The High Court and Court of Appeal both rejected UNISON's application. The Supreme Court unanimously allowed UNISON's appeal, finding that the Fees Order was unlawful under domestic and EU law because it prevented access to justice. It must therefore be quashed. The Supreme Court pointed out that fees bear no relation to the value of the claim and therefore act as a deterrent to claims for small amounts of money or non-monetary remedies. The evidence showed that the effect of the Fees Order was a dramatic fall in the number of claims and it contravened the EU law guarantee of an effective remedy before an ET. It was also indirectly discriminatory because the higher fees for discrimination claims put women at a particular disadvantage. This is because a higher proportion of women bring these claims than claims that attract lower ET fees.

The Lord Chancellor previously gave an undertaking to repay all ET fees paid since 2013 if the Fees Order was found to be unlawful and the Government will need to set up a system for repayment. It is unclear what will happen where a claimant was successful in the ET and the respondent employer reimbursed the fees. We are likely to see an increase in ET claims, as fees will have to be abolished with immediate effect, and the Government will presumably now give some thought as to how it can implement a lawful scheme for ET fees, perhaps by introducing a scale of fees linked to the value of claims.