Supreme Court quashes employment tribunal fee regime


In July 2013, the Lord Chancellor introduced issue and hearing fees into the employment tribunal system. There followed a drop in claims of around 70%. UNISON brought judicial review proceedings challenging the new regime. The Independent Workers Union of Great Britain were permitted to intervene at the UKSC in support of the UNISON appeal.

In a landmark judgment, a unanimous seven-member Supreme Court reaffirmed and explained the importance which both the common law and EU law attaches to access to justice. While court fees may be justifiable in principle, here they effectively prevented access to justice. The evidence showed that some potential claimants could not reasonably afford the fees and, in any event, the fees rendered futile many claims attracting little or no financial compensation. Accordingly, in the absence of any express statutory authority, the Fees Order was unlawful. Even if the fees regime had not effectively prevented access to justice, it would only have been lawful if the Lord Chancellor could show that it was reasonably necessary in pursuit of a legitimate aim. However, the Fees Order was a disproportionate (and, in some respects, specious) way of pursuing the Lord Chancellor’s aims of transferring some of the cost of the system to users, encouraging settlement, and deterring weak claims.

The Supreme Court also held that the charging of higher fees for certain types of claim which were more likely to be brought by women amounted to unjustified indirect discrimination.

For a short summary of this case, and links to the judgment, please click here.

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