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Introduction

The case of R (on the
application of UNISON) (Appellant) v Lord Chancellor (Respondent) has been one
heavily debated by the Supreme Court; I will present to you the facts, issues
and judgements of the case.

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The purpose of the
Employment Tribunal was to offer an impartial place for employers and employees
to resolve disputes. However, the introduction of fees when a bringing a claim,
in 2013, has made this system less effective.1

This case has a broad
social context as it affects the UK working population and indeed society as a
whole. If someone has to bring a claim for unfair treatment in the workplace
such as discrimination or unfair dismissal, should they legally have to pay a
fee to right an injustice? 2

              

Facts

The Employment Tribunals and the Employment
Appeal Tribunal Fees Order 2013 is a piece of legislation, introduced in 2013,
which required payment in order to bring a claim (relating to employment) to
court. The exception was for those eligible for fee remission if their income
fell under a certain amount.3 This
legislation was introduced in order to encourage earlier settlement and to
deter unmeritorious cases being brought. 4

 

The fee amount would depend on whether the
claim was brought by a single claimant or by a group of claimants.5 The
claims were also categorised as either type A, costing £300, usually settled
quickly and outside court, or type B, more complex issues, for instance unfair
wages and therefore would take longer and could total £1,200.6

 

UNISON brought forward proceedings for
judicial review, arguing that the legislation was unlawful; the government were
breaching their statutory powers and did not have the authority to make changes
which contradicted domestic and EU law. Whilst rejected in the lower courts,
the Supreme Court upheld the appeal and, on July 26th 2017,7 was
quashed.

 

A variety of complex issues have stemmed from
this case. Legally, access to justice must be free and accessible to everyone
in society. Politically, it showed that protected groups such as women were
being targeted and as they were more likely to bring type B claims e.g. unfair
maternity leave8
. Once the fees were introduced, women were subsequently deterred from bringing
a claim due to the expenses. This is prohibited by the Equality Act 2010.9

 

There are numerous legal issues surrounding
the case, the most important being whether the fees, imposed by the Lord
Chancellor, could be seen as unlawful due to their effect on access to justice.
The Act made it impossible for all people to access the tribunals and bring up
injustices in the law regarding their employment, as the fees were
unaffordable. In order to be considered lawful “they have to be set at a level that
everyone can afford”.10 The
courts dismissed cases if they were thought to be unreasonable, this again
acted as a deterrent for people to bring their cases forward and subsequently
this prevents access to justice.

 

Many questions of law have also been debated
in this case: the constitutional rights of the government being one. The
arguments of the case look at whether the Fees Order ‘contravened EU Law’.11 Everyone
has a right to access justice under domestic and EU law, therefore the
government, in preventing this access to justice, the 2007 Act12 was
ultra vires. The Government derogated from their obligations under these laws which
is to allow everyone access to the courts.

 

Under EU Law, Article 14 of the Human Rights
Act states that everyone should have ‘protection from discrimination’13, and
have equal opportunities between women and men. Hence this order prevents
people from exercising injustices of these rights; this was a breach of their
statutory powers. Ultimately being able to bring injustices forward protects
the rule of law.

 

There have been many implications of bringing
in the no fees regime back into effect; for example, how cases which were previously
dismissed will be affected?

 

Judgments

The courts had initially
argued the case that the fees were indeed affordable as there was “no
conclusive evidence”14 that
claims were not being brought due to the fees.

UNISON had requested
figures to show the impact on the number of claims being brought since the
introduction of fees. Reluctantly, the government showed that the numbers fell
immediately, and in particular, discrimination claims fell dramatically.15

As the case developed, the
courts agreed the fees were seen as unaffordable as the low – middle class
households would need to give up day to day expenses in order to be able to
afford to bring the claim. This was in breach of policy considerations which
required the courts be accessible to all.

“It said the rule of law was undermined
because, if people couldn’t reasonably afford to bring employment tribunal
claims, this damaged the ability of the courts to enforce the law, and if
Parliamentary laws can’t be enforced then the electoral process could become “a
meaningless charade”.16  Adding fees impeded on access to justice so it
was ultimately deemed unlawful.

 

The judges analysed the use of precedent and
statute when reaching a decision. When assessing the lawfulness of The
Employment Tribunals and the Employment Appeals Tribunal Fees Order 2013,17 made by
Lord Chancellor, they looked at the Tribunals, Courts and Enforcement Act 200718 (TCEA
2007). S 42 of the TCEA19 states
that the Lord Chancellor must gain approval from the “Senior President of
Tribunals” before introducing the fees and that he must also “take such steps
as are reasonably practicable to bring information about fees under subsection
(1) to the attention of persons likely to have to pay them.”

 

The Supreme Court
unanimously allowed the appeal. They agreed that people should “be able to
enforce their rights”20 and a
remedy should be available. Their ratio decidendi was that the Lord
Chancellor’s powers under s 42 of the Act21 did not
include preventing access to justice. “Whether the making of the Fees Order was
authorised by the Act?” The judges saw that there were statutory challenges
involved and the order had a negative result on those affected, rather than
contributing positively as the law should.

In the Supreme Court
judgement22,
the court decided the fees were not appropriate, nor affordable to all.

Obiter
dicta in the case included a previous Lord Chancellor who had
written to the chancery, disagreeing with the Fees Order: “In the case of the
civil courts the citizen benefits from the interpretation of the law by the
Judges and from the resolution of disputes, whether between the state and the
individual or between individuals.”23

 

Lord Reid’s gave his judgement
on how the Act was unlawful and Lady Hale gave a statement on this issue of
discrimination.24

 

Impact

The judgement has been welcomed by many
people who were afraid to speak out at risk of losing their job or those who
could not afford to bring a claim. A legal impact of the case will now be that
employers know that they are accountable for unfair practices, with employees
able to bring court action at no cost to themselves. Socially, the case will
impact on the dynamics of professional relationships, with the power handed
back to the majority and an accessible route for redress if they feel they have
been treated wrongly.

 

However, the decision has
left some ambiguities and unanswered questions. It is not clear how claimants
will be reimbursed, how an employer will reimburse a group claim or if the
employer in turn will be reimbursed.

Furthermore, it was clear
that the government had been acting unconstitutionally when introducing the new
legislation. The “free” claims had been cut to save money and after the order
was quashed, the government have to reimburse anyone who has had to pay for a
claim over the past 4 years, estimated to cost around £30-£35 million.25

The introduction of this
legislation and subsequent reimbursement of those who underwent the process has
been seen to be counterproductive. This money will have to come out of
government funding resulting in other public services being underfunded. It is possible
however that the settlement on non-payment of fees will only be short lasting,
with a new, affordable fee regime implemented sometime in the future.26

 

Conclusion

Access to justice is becoming increasingly
important in our complex society and we must recognise the need for, and
uphold, these values. As shown above, the case was officially repealed on July
26, 2017, having found to be unlawful under English law. Subsequently the law
is more accessible to all, regardless of income, status or position and we can
again see more prominent workers’ rights. I feel that this case has concluded
successfully, and highlights the importance of having just and reasonable laws
in society.

 

 

 

1 Carla Dougan, ‘Employment Tribunal Fees’ (The Law Society Gazette,
4th August 2017) accessed 7th January 2018

2 Equality Act 2010, s 19

3 Tribunals, Courts and
Enforcement Act 2007, s 42(2)

4 ‘R (UNISON) v Lord
Chancellor’ (Blackstone Chambers, 30th
July 2017)
accessed 6th January 2018

5 ‘Press Summary’ (The Supreme Court, 26th July
2017)
accessed 6th January 2018

6 Ibid

7 Mark Elliot, ‘Unison in
the Supreme Court: Tribunal Fees, Constitutional Rights and the Rule
of Law’ (Public Law for Everyone, 26th July 2017)
accessed 13th January 2018

8 Carla Dougan, ‘Employment Tribunal Fees’ (The Law Society Gazette,
4th August 2017) accessed 7th January 2018

9 The Equality Act 2010 s
149

10 Dawn Robertson, ‘Practical
consequences of UK Supreme Court decision on employment tribunal fees’ (HM insights, 21st September
2017)
accessed 12th January 2018

11 Carla Dougan, ‘Employment Tribunal Fees’ (The Law Society Gazette,
4th August 2017) accessed 7th January 2018

12 Tribunals, Courts and
Enforcement Act 2007

13 Human Rights Act 1998

14 ‘UK Supreme Court cancels
case fees to ensure workers’ access to justice’ (ESCR-Net, 2017)
accessed 14th January 2018

15 Press Summary’ (The Supreme Court, 26th July
2017)
accessed 6th January 2018

16 ‘How UNISON changed the law: the
story behind our success’ (UNISON, 1st
August 2017)
accessed 13th January 2016

17 The Employment Tribunals
and the Employment Appeals Tribunal Fees Order 2013

18 Tribunals, Courts and
Enforcement Act 2007

19 Ibid s 42

20 Matt Creagh ‘Employment
Tribunal Fees found to be unlawful’ (TUC,
26th July 2017)
accessed 7th January 2018

21 Tribunals, Courts and
Enforcement Act 2007, s 42

22 Press Summary’ (The Supreme Court, 26th July
2017)
accessed 6th January 2018

23 Ibid

24 Dawn Robertson, ‘Practical
consequences of UK Supreme Court decision on employment tribunal fees’ (HM insights, 21st September
2017)
accessed 14th January 2018

25 Rachel Zani, ‘Case
Comment: R (UNISON) v Lord Chancellor 2017 UKSC 51

   ‘ (UKSC Blog, 17th August 2018)
accessed 8th January 2018

26 Dawn Robertson, ‘Practical
consequences of UK Supreme Court decision on employment tribunal fees’ (HM insights, 21st September
2017)
accessed 12th January 2018

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