Unison has won a landmark ruling that reinforces the principle of access to justice. The public service union brought the appeal before the UK Supreme Court challenging the controversial fees imposed when making a claim to an employment tribunal or the EAT. Prior to the coming into force of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893 on 29 July 2013, claimants could bring claims before the tribunals without charge. The fees were introduced by then Lord Chancellor Chris Grayling in an attempt transfer part of the cost burden of the tribunals from taxpayers to users of their services, to deter unmeritorious claims and to encourage earlier settlement. The fees were a huge expense for many, ranging from £390 -£1,200, and in many cases rendered claims futile as the cost of fees often outweighed that which they were claiming.

Unison sought judicial review of the fees regime and a quashing of the Order arguing its formation was an unlawful exercise of the Lord Chancellor’s statutory powers because the prescribed fees interfered unjustifiably with the right of access to justice under both the common law and EU law, frustrated the operation of parliamentary legislation granting employment rights and discriminated unlawfully against women and other protected groups. The case was rejected by the High Court and Court of Appeal and progressed to the highest appellate court, the UK Supreme Court.

The Supreme Court unanimously allowed the appeal. Lord Reed, delivering the leading judgment, confirmed the government was acting unlawfully and unconstitutionally when it introduced the fees four years ago. The Court explained the “sharp, substantial and sustained fall in the volume of case receipts as a result of the introduction of fees” led to the conclusion that a substantial number of people who would otherwise have brought claims considered the fees excessive and unaffordable.

Lord Reed highlighted the constitutional right of access to the courts is inherent in the rule of law and concluded there was a real risk that individuals would be prevented from having access to justice. The Court acknowledged that while the underlying purpose of the Order had legitimate aims, it had not been shown that it was the least intrusive means of achieving those aims. Lord Reed examined the impact of the Order on claims derived from EU law. He made reference to the EU principles of effectiveness, effective judicial protection and the right to a fair trial under Article 6 of the ECHR. The Court concluded the Order was in contravention of the EU law guarantee of an effective remedy before a tribunal and imposed disproportionate limitations on the enforcement of EU employment rights. Lady Hale delivered a separate judgment on discrimination concluding the Order was indirectly discriminatory under the Equality Act 2010 as more women brought type B claims than type A claims and such claims commanded a higher fee.

The historic ruling means that anyone seeking to bring a claim before the tribunals will no longer be required to pay a fee. The government will also have to refund more than £27m to those charged for taking claims to the tribunals since July 2013. Employment law is a devolved power in Northern Ireland and there is no charge for making a claim in the Industrial Tribunal or the Fair Employment Tribunal. However, the UNISON judgment is hugely significant for those involved in employment law and is interesting in its scope.
https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf

Watch the Supreme Court ruling here:
https://www.youtube.com/watch?v=HFe5liLHOo4