Unison’s Supreme Court victory sees tribunal fees scrapped

July 26, 2017 at 9:29 am (campaigning, Civil liberties, law, rights, unions, UNISON, workers)

From Unison:

Supreme Court verdict follows four-year fight by union and is a victory for everyone in work

Employment tribunal fees will be scrapped after UNISON won a landmark court victory against the government this morning. 

The Supreme Court – the UK’s highest court – has unanimously ruled that the government was acting unlawfully and unconstitutionally when it introduced the fees four years ago.

From today, anyone who has been treated illegally or unfairly at work will no longer have to pay to take their employers to court – as a direct result of UNISON’s legal challenge.

 The government will also have to refund more than £27m to the thousands of people charged for taking claims to tribunals  since July 2013, when fees were introduced by then Lord Chancellor Chris Grayling.

Anyone in England, Scotland and Wales wanting to pursue a case against their employer has had to find as much as £1,200. This has been a huge expense for many low-paid employees, says UNISON.

Reacting to this morning‘s decision, UNISON general secretary Dave Prentis said: “The government is not above the law. But when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work.

Read the full Supreme Court judgement in
R (on the application of UNISON) v Lord Chancellor

 “The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.

 “It’s a major victory for employees everywhere. UNISON took the case on behalf of anyone who’s ever been wronged at work, or who might be in future. Unscrupulous employers no longer have the upper hand.

 “These unfair fees have let law-breaking bosses off the hook these past four years, and left badly treated staff with no choice but to put up or shut up.

“We’ll never know how many people missed out because they couldn’t afford the expense of fees. But at last this tax on justice has been lifted.”

 UNISON assistant general secretary Bronwyn McKenna added: “The Supreme Court correctly criticised the government’s failure when it set the fees to consider the public benefits flowing from the enforcement of legal rights enacted by Parliament.  

 “The effective enforcement of these rights is fundamental to parliamentary democracy and integral to the development of UK law. UNISON’s case has helped clarify the law and gives certainty to citizens and businesses in their everyday lives.”

The decision marks the end of a four-year fight by UNISON to overturn the government’s introduction of fees.

Employment tribunal fees were introduced on 29 July 2013 and started at around £160 for a type A claim, such as wage claims, breach of contract, and £250 for a type B claim, covering issues such as unfair dismissal, race and sex discrimination.

There was also a further hearing fee of £230 for Type A and £950 for Type B claims. Appeals at the employment appeal tribunal attracted an additional £400 lodging and £1,200 hearing fee.

The seven Supreme Court judges ridiculed the government’s misunderstanding of “elementary economics, and plain common sense”, when it claimed higher fees would mean increased demand.

The judges also said fees were set so high, it “has had a deterrent effect upon discrimination claims, among others”, and also put off more genuine cases, than the so-called vexatious claims the government claimed fees were meant to deter. 

The Supreme Court stressed that the administration of justice is not merely a public service, where courts and tribunals are only of value to the “users” who appear before them and who obtain a remedy. 

It said access to justice is of value to society as a whole, especially where cases establish legal rules and principles of general importance.

The Court said UNISON’s evidence showed the fall in claims when fees came in was “so sharp, so substantial and so sustained” that they could not reasonably be afforded by those on low to middle incomes.

It also held that fees particularly deterred the kind of ‘low-value’ claims generally brought by the most vulnerable workers.

5 Comments

  1. John Cunningham said,

    This is fantastic news! A small victory but an important one for those individuals trying to seek some justice. Congratulations to all concerned!

  2. Jim Denham said,

    Barrister Daniel Barnett writes:

    Update: Employment Tribunal Fees
    Further to this morning’s bulletin (reproduced below)…

    I understand from reliable sources that:-

    1. employment tribunals are now refusing to take fee payments when hard copies of ET1s are presented in person at one of the tribunals which is nominated to accept physical ET1s.

    2. although the online ET1 form still requires payment of the fee, this will be updated as soon as logistics permit.

    Daniel Barnett

    EARLIER BULLETIN

    By now, you probably know about this morning’s Supreme Court has allowed the appeal by Unison, holding that the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 (which led to a 70% reduction in claims) is unlawful and will be quashed.

    In the main judgment, the Supreme Court noted a contrast between the level of fees in the tribunal, and the small claims court (where it is very much cheaper to bring a claim for a small sum of money). Lord Reed emphasised the importance of the rule of law, and that specific statutory rights granted by Parliament may not be reduced by statutory instrument from a minister. He relied on the fact that employment tribunal cases are important for society as a whole, not just the individuals involved. If the Fees Order prevents access to justice, it will be ultra vires.

    And the Supreme Court held that the Fees Order DOES effectively prevent access to justice (paras 90-98). It also held that the Fees Order imposed unjustified limitations on the ability to enforce EU rights (ie those claims based on EU law), and was thus unlawful under EU law.

    Baroness Hale gave a separate, short, judgment on the indirect discrimination aspects of the fees regime. She concluded that it was indirectly discriminatory to charge higher fees for type ‘B’ claims (which include discrimination claims) than type ‘A’ claims.

    WHAT WILL HAPPEN NEXT?

    First, it is unlikely the fees regime will be abolished entirely. It is probable that the government will issue a consultation paper and then bring in a new fees regime, with fees at a lower level and/or involving a fee payable by the employer when the employer lodges its ET3.

    Second, the Employment Tribunals Service has its work cut out. Thought will need to be given to an immediate rewriting of the tribunal rules, and a reprogramming of the online Claim Form system.

    Third, the Supreme Court made it clear that all fees paid between 2013 and now will have to be refunded by the Lord Chancellor’s Department (and the Lord Chancellor has agreed to do so). This is easier said than done – many successful claims will have had fees ordered to be paid by the Respondent, and there will probably need to be a manual trawl of all decided cases.

    Fourth, what about all those people who chose not to bring a claim because of the fees? Will tribunals be amenable to the argument that it was not reasonably practicable to bring a claim when a Claimant was significantly impeded from doing so by an unlawful fees regime? Or that following today’s decision it is just and equitable to extend time for bringing a claim?

    The final thing that needs to be said is congratulations to the legal team at Unison (here is their press release), especially Adam Creme and Bronwyn McKenna, and to Dinah Rose QC who presented the arguments before the Supreme Court. Congratulations and well done.

  3. Jack Ladd said,

    Good news for Gerard Coyne

    • Dave said,

      Aye and great news for every working
      person in the country. Bit of history being
      made.

  4. Boleyn Ali said,

    John disagree this is far from a “small victory” and the judgment, in the Supreme Cour,t makes a very powerful statement about access to justice from which more could follow.

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