R (UNISON) v Lord Chancellor
[2017] UKSC 51
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 was unlawful and of no effect. The fees imposed — up to £1,200 for a Type B claim (including unfair dismissal) — were unlawful at common law because they effectively prevented workers from exercising their statutory rights of access to employment tribunals. The constitutional right of access to the courts and tribunals is not merely a procedural formality but a substantive right going to the rule of law; Parliament must use express and unambiguous language to remove it. The fees order was also unlawful under EU law because it contravened the principle of effectiveness by rendering rights conferred by EU directives virtually impossible to exercise in practice.
Facts
In July 2013, the Lord Chancellor introduced, under the Tribunals, Courts and Enforcement Act 2007, a system of fees for bringing employment tribunal claims: a £160–250 issue fee and a £230–950 hearing fee, with the highest fee category (Type B, covering unfair dismissal, discrimination, and equal pay) totalling £1,200. Following the introduction of fees, the number of employment tribunal claims fell by approximately 70%. UNISON, the public service trade union, applied for judicial review of the fees order on the grounds that it unlawfully prevented access to justice and was indirectly discriminatory. The Divisional Court and Court of Appeal dismissed the challenge. UNISON appealed to the Supreme Court.
Judgment Summary
The Supreme Court unanimously allowed the appeal. Lord Reed (with whom all justices agreed) gave a major judgment on the constitutional right of access to courts and tribunals. He held that employment tribunals are not merely a private dispute-resolution service: they exist to enforce rights conferred by Parliament for the benefit of society as a whole and to deter employers from breaking the law. The fees order was unlawful for two independent reasons. First, at common law, the right of access to courts is inherent in the rule of law, and the fees were set at a level that effectively prevented access. Lord Reed found, reviewing the statistical evidence, that a substantial number of workers who would otherwise have brought legitimate claims were deterred by cost. A secondary earner bringing a discrimination claim would have to pay fees representing a substantial proportion of monthly take-home pay. Second, under EU law, the fees contravened the principle of effectiveness and non-discrimination in Directives including the Equal Treatment Framework Directive. The fees order was quashed and the Lord Chancellor was required to refund all fees paid.
Key Quotes
"The constitutional right of access to the courts is inherent in the rule of law. Without it, laws are liable to become a dead letter, the executive might act without restraint, and the powerful might exploit the weak."
— Lord Reed at [68]
"Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced... When Parliament passes laws creating rights and obligations, it does so on the assumption that citizens will be able to enforce those rights and comply with those obligations through the courts."
— Lord Reed at [68]
"In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of fee remissions. The evidence in this case indicated that that requirement was not met."
— Lord Reed at [92]
Subsequent Treatment
An important constitutional authority on the right of access to justice. The fees were immediately abolished by the Lord Chancellor following the judgment and fees already paid were refunded.
Applied in R (Saccone) v Lord Chancellor [2020] in connection with court fees for civil claims, confirming that the principle in UNISON extends to the civil courts, though the court ultimately upheld those fees as set at an affordable level.
Considered extensively in debates about the proposed introduction of fees in employment tribunals following the repeal of the original order, with the government accepting that any new scheme must be designed to ensure access is not practically barred.
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