A worker owed a few hundred pounds in wages might be able to find the money for a tribunal fee and still have no sensible reason to bring a claim. That distinction between theoretical and practical access to justice lay at the heart of UNISON’s challenge to the 2013 employment tribunal fees.
Until the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, made by the Lord Chancellor under section 42 of the Tribunals, Courts and Enforcement Act 2007, a claimant could bring proceedings in an employment tribunal and appeal to the Employment Appeal Tribunal without paying a fee. The Order required an issue fee and a hearing fee. For a single claimant the totals were £390 for a type A claim and £1,200 for a type B claim, the latter category including unfair dismissal, equal pay and discrimination. Fees in the Employment Appeal Tribunal totalled £1,600. A statutory remission scheme applied only where disposable capital and gross monthly income fell below specified levels, and the Lord Chancellor’s discretion to remit fees in exceptional circumstances was rarely exercised.
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The Government’s aims were to transfer part of the cost of the tribunals from taxpayers to users, to encourage earlier settlement, and to discourage weak or vexatious claims. Employment tribunals had long been intended, following the Donovan Report, to provide an accessible and inexpensive forum for statutory employment rights, including claims of modest or no financial value brought by low-paid or recently dismissed workers. They are the only forum for most such claims.
Evidence of the effect of the fees
After fees were introduced, the number of claims accepted fell by about 66–70 per cent. Claims of modest monetary value and claims seeking no money fell particularly sharply. Remission reached fewer claimants than expected. Evidence from households showed what paying a fee could mean in practice. Even a successful claimant could face difficulty recovering the award from the employer.
The right of access to justice
Lord Reed explained why access to courts and tribunals matters beyond the parties to a particular case. Parliament can confer employment rights, but a worker must be able to enforce them. Even an employer and employee settling a dispute out of court rely on the possibility of a hearing if negotiations break down. Section 42 empowered the Lord Chancellor to prescribe fees. It contained no authority to prevent access to the tribunal.
Conclusive proof that named individuals had been unable to claim was not required. Taken realistically and as a whole, the evidence showed that the fees were not reasonably affordable for a significant number of people who would otherwise have brought claims. Households on low to middle incomes could meet them only by sacrificing the ordinary and reasonable expenditure needed for an acceptable standard of living. The fees also prevented access where they made a claim futile or irrational, as with many low-value or non-monetary claims, given the difficulty of predicting success, the limited availability of legal aid, and the real risk that an award, including any order for repayment of fees, would not be met. The restricted remission scheme and the exceptional discretion did not answer a systemic problem. The Court of Appeal’s approach, which treated the question as whether payment was impossible in practice rather than whether the fees could reasonably be afforded or made a claim pointless, was not accepted.
The intrusion was not justified. It had not been shown that lower fees or a more generous remission system would have been any less effective in transferring cost. Higher fees do not automatically recover more revenue, and the price elasticity of demand had been greatly underestimated. Nor had fees at the level set been shown to be necessary to encourage settlement or to deter weak claims. The proportion of successful claims had not risen, and the evidence did not show an increase in the proportion of disputes settled through Acas. The public benefit of enforcing rights conferred by Parliament had not been taken into account when the fees were set.
EU law
Many rights enforceable only in employment tribunals derive from EU law. Restrictions on access to those tribunals therefore had to comply with the principles of effectiveness and effective judicial protection and with article 47 of the Charter of Fundamental Rights. A limitation must be proportionate. Ability to pay is only one relevant factor. Because the fees were in practice unaffordable for some people, and so high as to prevent even people who could afford them from pursuing small or non-monetary claims, the Order was disproportionate and unlawful under EU law so far as it applied to those rights.
The illegality was not a later failure to review an originally lawful measure. The Order prevented access to justice as soon as it was made, so it was unlawful from the beginning.
Discrimination
Lady Hale considered the higher fees charged for type B claims under section 19 of the Equality Act 2010. The greater impact on women was accepted. On the evidence, charging more for this class of claim had not been justified as a proportionate way to meet the government’s aims. She distinguished that general impact from the narrower argument about women bringing discrimination claims specifically, which she did not finally decide.
Verdict: The Supreme Court unanimously allowed UNISON’s appeal and quashed the 2013 Fees Order. It had prevented access to justice from the outset and also breached EU law in relation to EU-derived rights. The parties were invited to make submissions on consequential relief.
