Employment tribunal fees regime unlawful


Re: R (UNISON) v Lord Chancellor [2017] UKSC 51

Appeal in judicial review proceedings considering whether fees in the employment tribunal system were unlawful because of their effect on access to justice. The Supreme Court unanimously allowed Unison’s appeal.

The Court held that the making of the Fees Order was not a lawful exercise of the powers of the respondent because the prescribed fees interfered unjustifiably with the right of access to justice at common law. Parliament had long intervened so as to confer statutory rights on employees, due to the imbalance of economic power between employers and employees. For such rights to be effective, they must be enforceable in practice. Following authority, the Court held it was clear that any hindrance or impediment to court access required clear Parliamentary authorisation. Even an interference with access to the courts that was not insurmountable would be unlawful unless it could be justified as reasonably necessary to meet a legitimate objective. Having considered the evidence, the Court concluded that the sharp, substantial and sustained fall in the number of claims warranted the conclusion that a significant number of people who would otherwise have brought claims have found the fees not to be reasonably affordable. As the Fee Order had the effect of restricting access to justice ab initio, the Court considered that it must be quashed. Finally, the charging of higher fees for certain types of claim more likely to be brought by women was indirectly discriminatory, with the measures not justified as a proportionate means of achieving the stated aims of the fees regime.

Karon Monaghan QC, Mathew Purchase and Aidan O’Neill QC were involved in this case.