Unison has won a four-year battle against the Government, with the Supreme Court ruling today that employment tribunal fees are unlawful.

In the landmark decision, the Government will have to repay all employment tribunal fees since it introduced the law in 2013. Unison has argued that the fees were “unjust and discriminatory” and had had a detrimental effect on access to justice, with there being a a significant fall in the number of employment tribunal claims.

Unison, which was represented in court by head of legal services Adam Creme, was able to bring the challenge against the government because no act of parliament was passed to implement the law. Unison instructed Blackstone Chambers’ Dinah Rose and Matrix Chambers’ Shantha David, Karon Monaghan, Bronwyn McKenna, Matthew Purchase, Iain Steele.

The Government legal department represented the Government during the case.

The newly elected president of the Supreme Court Lady Hale found that although the fees order did not amount to a discriminatory “provision, criterion or practice on the whole”, the higher fees for claims such as discrimination and unfair dismissal were “indirectly discriminatory against women”.

Along with Lords Neuberger, Mance, Kerr, Wilson Reed, Hughes, Hale ruled that the fees varying from £390 to £1,200 were “in practice unaffordable to some” and that they had prevented citizens from exercising their rights.

Using figures released by the Joseph Rowntree Foundation, a single mother earning a net monthly income of £2,041 would have to suffer a “substantial shortfall from what she needs in order to provide an acceptable living standard for herself and her child” while a woman with a partner and children on a net monthly income of £2,866 would also have to make sacrifices if they wished to bring a type a or b claim to tribunal.

The judgment read: “Given the conclusion that the fees imposed by the Fees Order are in practice unaffordable by some people, and that they are so high as in practice to prevent even
people who can afford them from pursuing claims for small amounts and nonmonetary claims, it follows that the Fees Order imposes limitations on the exercise of EU rights which are disproportionate, and that it is therefore unlawful under EU law.”

It continues: “This is not a case in which an administrative decision is being challenged on the basis that relevant considerations were not taken into account, or on the basis that the decision was unreasonable. The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful ab initio, and must be quashed.”

The judges rejected some of the main objectives behind the introduction of the fees, saying that the fees had not effectively transferred cost away from the taxpayer and that unmeritorious claims had not been deterred, with there being no basis for concluding that only stronger cases were being litigated.

The court also rejected the claim that the fees were leading to more claims being settled, saying the opposite appeared to be the case.

In October 2014, a Court of Appeal hearing found that the best way for Unison to continue its challenge was through a judicial review, in which it would be able to rely on the claims statistics produced earlier in the year that revealed a  59 per cent reduction in ‘single’ claims (those made by a sole employee/worker rather than a group) for January to March 2014, compared with the same period in 2013.

Reaction to the ruling

The Bar Council: “This decision from the Supreme Court is welcome to all who believe in the fundamental importance of the rule of law. There are broad and encouraging implications for those of us that believe in the case for increasing access to justice in our society.  The decision makes it clear that in order for the Courts to perform their role of ensuring the law is applied and enforced, people must have unimpeded access to the them. Charging fees which deter or prevent access is unlawful, and undermines the government of society by the rule of law.

“In addition, and specifically, we welcome the fact that in relation to issues that arise in the work place, the Supreme Court has ruled in favour of giving people who face age, sex or race discrimination the right to challenge their employer without being deterred by high tribunal fees.”

Law Society president Joe Egan: “This decision is a triumph for access to justice, and a resounding blow against attempts to treat justice as a commodity rather than the right it is.” 

“We argued against the hike in tribunal fees before it was implemented and – like so many others – warned that they would deny people the chance to uphold their basic rights at work. Today the Supreme Court has vindicated that view, and restored access to justice for those mistreated in the workplace.”  

“As the Supreme Court identified, these fees placed an insurmountable barrier in the way of tens of thousands of people. 

“Access to justice is a fundamental right – if you can’t enforce your rights then it renders them meaningless. Today’s decision will serve as an urgently needed wake-up call – justice must never be a luxury for those who can afford it, it is a right we all share.”