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United Kingdom

3 August 2017

UK: charging employment tribunal fees is illegal

The UK's Supreme Court ruled tribunal fees unlawful after a four-year fight by the public sector trade union UNISON. Following UNISON’s legal challenge, the Court stated that employment tribunal fees are unlawful because they price workers out of accessing justice and discriminate against women. According to the court the fees have unfair effects on access to justice. The trade unions welcomed the ruling a massive step towards ensuring that working people can enforce their employment rights.

Employment rights in the UK can only be enforced in employment tribunals and the employment appeal tribunal. After the coming into force in July 2013 of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, a claimant could no longer bring and pursue proceedings in an employment tribunal and appeal to the employment appeal tribunal without paying fees. The government argued in 2013 that the aim of the fees order was to transfer part of the cost burden of the tribunals from taxpayers to users of their services, to deter unmeritorious claims, and to encourage earlier settlement. The amounts of the fee depended on whether the claim was brought by a single claimant or a group, and whether the claim was classified as ‘type A’ or ‘type B’. The A-type claims generally required little pre-hearing work and very short hearings with fees of £390. All other claims were type B, including unfair dismissal, equal pay and discrimination claims, with fees of £1200.

Trade union UNISON started proceedings for judicial review in which the union argued that the making of the Fees Order was not a lawful exercise of the government’s statutory powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups. UNISON argued that fees of up to £1,200 were preventing workers – especially those on lower incomes – from getting justice.

The Supreme Court unanimously allowed the appeal and stated that 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 and must be quashed. The seven judges reminded the government of the constitutional right of access to the courts. This access is inherent in the rule of law: it is needed to ensure that the laws created by Parliament and the courts are applied and enforced. Otherwise, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. Tribunals are more than merely the providers of a service which is only of value to those who bring claims before them. As a matter of domestic law, 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 degree of intrusion into access to justice is greater than is justified by the purposes of the Fees Order. The court also concluded that ‘a significant number of people who would otherwise have brought claims have found the fees to be unaffordable’.

The Court’s decision leads to the immediate repeal of tribunal fees and pressure on the government to repay workers who have made claims in the last four years. The UK government has said it will abolish the charging of employment tribunal fees and reimburse those that have paid them. Trade union UNISON, which brought the case to court, made an estimate that these refunds would amount to more than £27m.

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