R (UNISON) v Lord Chancellor [2017]

R (UNISON) v Lord Chancellor [2017] UKSC 51 is a significant ruling by the UK Supreme Court that reaffirmed the fundamental constitutional right of access to justice. It concerned the legality of fees imposed on claimants in employment tribunals and employment appeal tribunals under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (“the Fees Order”). The Supreme Court unanimously held that the Fees Order was unlawful and must be quashed because it effectively prevented access to justice and contravened both domestic and EU law.

Prior to the introduction of the Fees Order, claimants could bring cases before employment tribunals (ETs) and employment appeal tribunals (EATs) without paying any fees. However, from 29 July 2013, the Fees Order imposed mandatory fees for initiating and continuing claims. The purpose of the Order was to transfer part of the financial burden of the tribunal system from taxpayers to users, to discourage unmeritorious claims, and to encourage early settlement. Fees varied depending on the type and complexity of the case, with “type A” claims (simpler cases) costing £390 and “type B” claims (including claims for unfair dismissal, discrimination, and equal pay) costing up to £1200. Provision for fee remission existed but was limited by means-testing, and claimants had to demonstrate low disposable capital and income to qualify.

The trade union UNISON challenged the legality of the Fees Order, arguing that it interfered with the right of access to justice and thus exceeded the Lord Chancellor’s statutory powers. UNISON also contended that the Order frustrated the purpose of legislation granting employment rights and was unlawfully discriminatory, particularly against women.

In a judgment delivered by Lord Reed, the Supreme Court found that the Fees Order was unlawful from the moment it was introduced because it infringed the constitutional right of access to justice. The Court emphasised that this right is a cornerstone of the rule of law and essential for ensuring that laws enacted by Parliament are applied and enforced. The Court noted that employment tribunals are not merely service providers; they are mechanisms by which legal rights are upheld.

The Court found that the fees bore no relationship to the value of claims, especially in lower-value or non-monetary claims which formed a significant proportion of employment disputes. This disproportionate burden effectively deterred many claimants from pursuing legitimate claims. Statistical evidence showed a sharp and sustained fall in tribunal claims after the introduction of the fees, with claimants frequently citing cost as the reason for not proceeding. The Court held that fees which cannot be reasonably afforded without sacrificing an acceptable standard of living are not “affordable” in any meaningful sense. Moreover, even if fees could be paid, they would still restrict access to justice if they rendered it irrational or futile for claimants to pursue certain types of claims.

The Supreme Court also determined that although the objectives behind the Fees Order were legitimate, such as cost-sharing and deterring weak claims, the Order was not the least restrictive means of achieving these aims. Alternative, less intrusive measures could have been used. Therefore, the Order failed the test of proportionality required under both domestic and EU law.

Lady Hale, in a separate but concurring judgment, found that the Fees Order was indirectly discriminatory under the Equality Act 2010. The higher fees for type B claims disproportionately affected women, who were more likely to bring such claims (e.g., for pregnancy-related dismissal or gender discrimination). The government failed to justify this discrimination, as there was no evidence that the higher fees were necessary or effective in meeting the stated policy goals.

The Court quashed the Fees Order, declaring it unlawful and void. This judgment had an immediate and profound impact: tribunal fees were abolished, and the government was required to refund fees paid by claimants since 2013.

The decision in UNISON is a landmark affirmation of the principle that access to justice is not merely a theoretical right but a practical necessity. The case underscores the judiciary’s role in safeguarding constitutional rights and ensuring that executive actions do not undermine the rule of law. It also demonstrates the UK Supreme Court’s leadership in the common law world in upholding fundamental rights and principles with wide-reaching consequences for administrative law and equality law.