The ability of all workers to access justice, regardless of their financial position, was restored recently when the Supreme Court ruled in R (on the application of UNISON) v Lord Chancellor that the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, (the Fees Order), which came into force in 2013, was unlawful at common law and under EU law.
The Fees Order forced employees who wished to bring a claim in the Employment Tribunal to pay between £390 and £1,200. Any appeal sought in the Employment Appeal Tribunal incurred a fee of £1,600.
Since the fees were introduced in 2013, claims brought before the Employment Tribunal have dropped by 79%.
The trade union organisation UNISON, challenged the Fees Order via judicial review, stating that the making of the Order was not a lawful exercise of the Lord Chancellor’s statutory powers, because;
- the prescribed fees interfere unjustifiably with the right of access to justice under both common law and EU law, and
- frustrate the operation of Parliamentary legislation granting employment rights, and
- discriminate unlawfully against women and other protected groups.
The seven judges unanimously agreed with all these points.
Harsh fees made it impossible for some to bring a claim against their employer
The fees were applied to all cases being brought before the Employment Tribunal and Employment Appeal Tribunal unless there were “exceptional circumstances”. The threshold for what constituted exceptional circumstances was set extremely high.
Unpublished guidance to staff at Her Majesty’s Courts and Tribunal Service (HMCTS), stated:
“In considering whether an applicant ‘cannot realistically afford to pay’, it is not enough that it may be difficult for a claimant to pay the fee. It is reasonable that a person might need to forego (sic) other spending in order to pay the fee. Instead, in order to be entitled to remission, a person must be in a position where, realistically, they simply cannot afford the fee.”
The Lord Chancellor argued that the fees could not be unlawful unless it is proved that they have prevented access to justice in specific cases. There was no evidence of this. Furthermore, the most financially vulnerable people qualified for the fees to be waived under “exceptional circumstances”. Those who do not so qualify had some income over and above the minimum necessary to meet the essentials of life, and could therefore, in the Lord Chancellor’s view, save the amount needed to pay the fees if they choose to do so.
In giving the lead judgment, Lord Reed disagreed. He said that for the fees to be lawful, “they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission”.
He went on to quote from a review report which stated, “it is clear that there has been a sharp, substantial and sustained fall in the volume of case receipts as a result of the introduction of fees”.
He concluded: “The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living, the fees cannot be regarded as affordable.”
EU law and “Brexit-proofing” the decision
Twenty-four of the rights enforceable in the Employment Tribunal had their origins in EU law, including the right to equal pay, the rights to equal treatment and maternity leave, and the various rights granted under the Working Time Directive. Therefore, any restrictions on the right of access to the Employment Tribunal and the Employment Appeal Tribunal falls within the scope of EU law.
Article 47 of the Charter of Fundamental Rights of the European Union states, “everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal”.
Lord Reed concluded, after evaluating relevant case law, that the Fees Order was unlawful because it contravenes the EU law guarantee of an effective remedy before a tribunal: it imposes disproportionate limitations on the enforcement of EU employment rights.
David Allen Green made an excellent point in his blog in the Financial Times[1], that although employment law is heavily influenced by EU law, the Supreme Court cleverly made its decision “Brexit proof” by treating the fact that EU law is engaged as “merely incidental”. To protect it in the long-term, the decision “is based expressly on fundamental constitutional principles in the domestic law of the UK.”
What should employees who have a potential claim do now?
If you believe you have a potential claim against your employer, you should speak to an experienced employment law solicitor straight away. They will be able to advise and represent you in the Employment Tribunal, or if you wish to appeal a decision, the Employment Appeal Tribunal.
For those who have already paid fees under the Fees Order, it should be noted that the Government has pledged to make reimbursements, (given that now the Order has been quashed, there was no legal basis for taking the payment). If you have paid a fee to the Employment Tribunal or the Employment Appeals Tribunal, talk to your solicitor who will advise you on the government’s plan to reimburse you.
Nalders Solicitors is one of the oldest and most respected law firms in Cornwall. We have eight offices across the county and provide legal advice and representation on almost all areas of law.
If you have any questions about the Employment Tribunal fees or have an employment law matter you wish to discuss, please call us in confidence on 01872 241414.
[1] https://blogs.ft.com/david-allen-green/2017/07/26/the-meaning-of-the-employment-tribunal-fees-ruling/