In the case of R (UNISON) v Lord Chancellor [2017] UKSC 51 the Supreme Court ruled on 26th July  that statutory instrument requiring a claimant to the Employment Tribunal (ET) or Employment Appeal Tribunal (EAT) to pay a fee was unlawful under domestic and EU law. 

This Appeal arises out of the proceedings for Judicial Review in which the Trade Union, UNISON, (the Appellant) argued that Fees Order was not a lawful exercise of the Lord Chancellor’s statutory power as they unjustifiably interfered with a right of access to justice, both under common law and EU Law.  It was also argued that the imposition of such fees were discriminatory against women and other protected groups.

The Court found that the Fees Order presented a real risk that persons were being denied access to justice.    This was to be determined on the basis of the impact on behaviour in the real world.   There was evidence before the Court that the imposition of fees significantly reduced the ability of claimants who had lower value claims or claims with no monetary value access to justice.   The Supreme Court heard evidence that since the introduction of the Fee Orders there has been a dramatic and persistent fall, especially in lower level claims, in the number of claims brought before the ET and EAT.

Furthermore it was held that Fee Orders are also unlawful as they contravene the EU Law guarantee of the right to an effective remedy before a Tribunal, as it imposes a disproportionate limit on enforcement of EU Employment Rights.

Turning to the matter of discrimination, it was held that Fee Orders indirectly discriminate under the Equality Act 2010.  It was demonstrated that women were continually being put at a particular disadvantage, because their claims were more likely to fall into the category that required a higher fee to be paid.

Many people will regard this decision as a major step towards greater access to justice. No doubt that is so but fair access to justice is a principle much bigger than the single issue of the impact of tribunal fees. It would be a pity if focus on this single issue diverts attention from the other potentially greater barriers to justice. Such barriers may be said to include specifically in relation to employment rights pursued or defended in a tribunal (1) the cost of litigation caused by the complexity and amount of legislation particularly where that cost including management time dissuades employers on economic grounds from exercising their right to justice and leads to economic settlements of otherwise meritless claims and (2) the cap on the value of unfair dismissal claims and the impact this has on higher earners’ rights to justice and compensation which reflects their actual loss. One would hope that the access to justice campaigners will now turn their attention to these barriers and seek a system which allows fairer access to justice for employers and higher earners.

In relation to rights pursued through courts more generally the barriers are many and it can be assumed that the threat of losing your home and life savings must be a considerable deterrent. Further, having to pay for legal advice out of taxed income with a 20% surcharge also payable out of taxed income  more than doubles the cost. Access would be facilitated by the abolition of VAT on legal fees and allowing tax to be reclaimed on the cost of pursuing legal rights. Some simple tweaks to our tax systems are all that would be required.