Background: Decision of the High Court and Court of Appeal
By way of a reminder, after UNISON's first judicial review in the High Court failed, due to lack of evidence of the impact that the fees were having, UNISON raised a fresh judicial review.
At the time of raising the second judicial review, more detailed Ministry of Justice figures, showing the decline in Tribunal claims were available. This information was used by UNISON as evidence that the fees were denying access to justice. However, UNISON failed again on the basis that there was no evidence that the fees had prevented particular individuals from raising claims because they could not afford the fees.
UNISON was unsuccessful in the Court of Appeal for the same reason. The Court of Appeal stated that “the case based on the overall decline in claims cannot succeed by itself. It needs to be accompanied by evidence of the actual affordability of the fees in the financial circumstances of (typical) individuals. Only evidence of this character will enable the Court to reach a reliable conclusion that the fees payable under the Order will indeed be realistically unaffordable in some cases.”
As we mentioned in an earlier blog, an analysis of Employment Tribunal figures by the Trades Union Congress (TUC) indicated a 73% reduction in unfair dismissal claims lodged since the introduction of fees.
The Court of Appeal stated it was ‘troubled’ by the drop off in Tribunal claims following the introduction of fees, and commented that the decline in Tribunal claims "is sufficiently startling to merit a very full and careful analysis of its causes".
UNISON appealed the Court of Appeal's decision to the Supreme Court.
Decision of the Supreme Court
The Supreme Court's decision that employment tribunal fees are unlawful will be welcomed by many, including trade unions and its members. UNISON argued that the imposition of fees restricted access to justice as it prevented thousands of employees, particularly those on low incomes, from raising claims when they have been mistreated by their employer. In its judgment, the Supreme Court held that "The making of the Fees Order was not a lawful exercise of those 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."
As we have previously mentioned, the Government pledged that, if UNISON's action was successful, it would reimburse the fees of those who have brought claims. The Government will now have to repay millions of pounds paid by individuals who have brought claims, such as unfair dismissal and discrimination, to the Employment Tribunal since July 2013.