Until 29th July 2013 a claimant could bring and pursue proceedings in an Employment Tribunal and appeal to the Employment Appeal Tribunal without paying fees. By virtue of the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893), a claimant is burdened with having to pay a fee: the amount being dependent upon which ‘type’ of claim they seek to pursue and whether they are a single claimant or part of a group.
Whilst a scheme of fee remission exists, as any employment practitioner will be aware, the scheme is limited and dependent upon the claimant (and their partner) having a very low gross monthly income, unless “exceptional circumstances” exist, in which case the Lord Chancellor may grant remission.
UNISON brought proceedings for Judicial Review of the Fees Order, arguing that it did not represent a lawful exercise of the Lord Chancellor’s statutory powers because:
UNISON lost in the High Court and Court of Appeal. However, today the Supreme Court has unanimously allowed UNISON’s appeal.
Lord Reed gave the lead judgment on all issues save for the ‘discrimination issue’ for which Lady Hale gave the lead judgment.
The appeal was allowed on the basis the Fees Order is unlawful under domestic and EU law because its effect is to prevent access to justice. Consequently, the Fees Order has been quashed.
Noting that the constitutional right of access to the courts is inherent in the rule of law, the Supreme Court held that the Fees Order is unlawful if there is a real risk that persons will effectively be prevented from having access to justice, or if the intrusion into access to justice is greater than is justified by the purpose of the Fees Order.
The Supreme Court held that the ET and EAT fees are of no direct relation to the amount sought and can therefore be expected to act as a deterrent to claims for modest amounts or non-monetary remedies (which together form the majority of ET claims).
Making reference to the vast amount of research carried out since the introduction of fees, the Supreme Court pointed to the “dramatic and persistent” fall in the number of claims brought in ETs, with a greater fall in the number of lower value of claims and claims in which a financial remedy was not sought.
In noting that fees must be affordable in the sense they can reasonably be afforded, the Supreme Court held that fees cannot be affordable when households on low to middle incomes can only afford fees by forgoing an acceptable standard of living. The Supreme Court held that even where fees are affordable, they prevent access to justice where they render it futile or irrational to bring a claim (in a claim for a non-monetary remedy, for example).
Whilst the Supreme Court held that the stated purposes of the Fees Order are legitimate aims, it held that the Fees Order was not the least intrusive means of achieving those aims.
Further, the Fees Order was held to be unlawful because it contravenes the EU law guarantee of an effective remedy before a Tribunal, representing a disproportionate limitation on the enforcement of EU rights.
Giving the lead judgment on the discrimination issue, Lady Hale held that the Fees Order is indirectly discriminatory under the Equality Act 2010. The reason is that the higher fees for Type B claims put women at a particular disadvantage because a higher proportion of women bring Type B than Type A claims. The charging of higher fees was not justified in such circumstances.
Adam C. Willoughby
Deputy Head of Employment Law
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This Article is provided for information purposes only and does not constitute legal advice.