UNISON JUDGEMENT

Issue in the appeal- whether fees imposed by the Lord Chancellor in respect to the employment tribunals (ET) and the employment appeal tribunals (EAT) are unlawful due to their effects on the access to justice.

Parliament had conferred statutory right on employees, often implementing EU Law, many employment rights are not of a financial nature: including the right to written of the terms of employment. Those employment right that doe have financial consequences often involve small sums, for example, two weeks’ pay. Most employment rights can only be enforced in employment tribunals, with an appeal lying to the employment appeal tribunals. Until recently proceedings could be bought without any fees being paid; this changed when a Fees Order was introduced in July 2013. Under the Fees Order, the amount that must be paid for a claim or appeal, can be dealt with depending on whether the claim is classified as Type A or Type B. Type A claims usually require literal pre-hearing work and only a short hearing. Type B on the other hand require more of a tribunals time, more pre-hearings, and longer final hearings, because of their greater legal and factual complexity. For a single claimant, the fees and the employment tribunal total £190 for a type A claim, and £1200 for a type B claim.

The Fees Order makes provision for the remission of those fees if the claimant disposable capital, and that of their partner totals less than £3000. The amount of remission depends on the claimant’s gross monthly income, that of their partner, and the number of children they have. A couple earning the minimum wage would not qualify for remission in a type A case, but might get some remission in a type B case. The female is to be admitted if the lord chancellor decides that there is to be exceptional imbursement of the fees by the losing party, but in practise most successful claimants do not recover the full amount ordered to be paid, and many recovers nothing at all. This appeal arises out of an application for judicial review, in which the trade union UNISON argues that the making of the Fees Order was not a lawful exercise of a Chancellors statutory power to prescribe fees. As the fees imposed, interferes unjustifiably with the right of access to justice; under both common law and EU law. The application was dismissed by the High Court and the decision was upheld by the court of appeal. The supreme court unanimously allows UNISONs appeal, and holds the Fees Order to be unlawful under both domestic and EU law, because it has the effect of preventing access to justice, and is also discriminatory. The court’s decision was based principally on the common law right of access to the court. That right is a vital component of the rule of law, and it is needed to ensure that the laws created by parliament, including those creating employment rights, are applied and enforced.

The effect of the right, is that access to the courts and tribunals cannot be taken away by parliamentary authority. The court bases its conclusion that the fees are inconsistent with access to justice on many factors: (1) the fees have resulted in such a substantial and sustained fall of many claims being brought, pointing to the conclusion that several people have found the fees unaffordable. (2) Surveys have confirmed that people who notified their claims but did not report them to the employment tribunal, gave the reason that they couldn’t afford the fees. (3) Examples of claimant of low to middle income households, confirmed that they cannot afford the fees without sacrificing ordinary expenditure. (4) The evidence shows that the fees have a deterrent effect on claims of low monetary value or claims where no financial remedy is available.

The Fees Order was also deemed as unlawful as it contravenes the EU law guarantee of an effect of remedy before a tribunal, it proposes disproportionate limitations on the enforcement of EU employment rights. In addition, the Fees Order is indirectly discriminatory, contrary to the Equality Act 2010; a higher proportion of women bring Type B claims than Type A, and so the higher fees that are charged for type B claims put women at a disadvantage. The higher fees cannot be justified on the basis of the objectives of the Fees Order. Which were to transfer the cost burden of a tribunal, from tax payers to users of the services, and the encourage the early settlement of claims. It has not been shown that the higher fees for type B claims are any more effective than lower fees, in transferring the cost from taxpayers to users. The Fees Order was therefore quashed.