The Case R (on The Application of Unison) (appellant) V Lord Chancellor (respondent)

The case of R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) has been one heavily debated by the Supreme Court; I will present to you the facts, issues, and judgments of the case.

The purpose of the Employment Tribunal was to offer an impartial place for employers and employees to resolve disputes. However, the introduction of fees when a bringing a claim, in 2013, has made this system less effective.

This case has a broad social context as it affects the UK working for population and indeed society as a whole. If someone has to bring a claim for unfair treatment in the workplace such as discrimination or unfair dismissal, should they legally have to pay a fee to right an injustice?

Facts

The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 is a piece of legislation, introduced in 2013, which required payment in order to bring a claim (relating to employment) to court. The exception was for those eligible for fee remission if their income fell under a certain amount. This legislation was introduced in order to encourage earlier settlement and to deter unmeritorious cases being brought.

The fee amount would depend on whether the claim was brought by a single claimant or by a group of claimants. The claims were also categorized as either type A, costing £300, usually settled quickly and outside court, or type B, more complex issues, for instance, unfair wages and therefore would take longer and could total £1,200.

UNISON brought forward proceedings for judicial review, arguing that the legislation was unlawful; the government were breaching their statutory powers and did not have the authority to make changes which contradicted domestic and EU law. Whilst rejected in the lower courts, the Supreme Court upheld the appeal and, on July 26th, 2017, was quashed.

A variety of complex issues have stemmed from this case. Legally, access to justice must be free and accessible to everyone in society. Politically, it showed that protected groups such as women were being targeted and as they were more likely to bring type B claims e.g. unfair maternity leave. Once the fees were introduced, women were subsequently deterred from bringing a claim due to the expenses. This is prohibited by the Equality Act 2010.

There are numerous legal issues surrounding the case, the most important being whether the fees, imposed by the Lord Chancellor, could be seen as unlawful due to their effect on access to justice. The Act made it impossible for all people to access the tribunals and bring up injustices in the law regarding their employment, as the fees were unaffordable. In order to be considered lawful, “they have to be set at a level that everyone can afford”. The courts dismissed cases if they were thought to be unreasonable, this again acted as a deterrent for people to bring their cases forward and subsequently this prevents access to justice.

Many questions of law have also been debated in this case: the constitutional rights of the government being one. The arguments of the case look at whether the Fees Order ‘contravened EU Law’. Everyone has a right to access justice under domestic and EU law, therefore the government, in preventing this access to justice, the 2007 Act was ultra vires. The Government derogated from their obligations under these laws which is to allow everyone accesses to the courts.

Under EU Law, Article 14 of the Human Rights Act states that everyone should have ‘protection from discrimination’, and have equal opportunities between women and men. Hence this order prevents people from exercising injustices of these rights; this was a breach of their statutory powers. Ultimately being able to bring injustices forward protects the rule of law.

There have been many implications of bringing in the no fees regime back into effect; for example, how cases which were previously dismissed will be affected?

Judgments

The courts had initially argued the case that the fees were indeed affordable as there was “no conclusive evidence” that claims were not being brought due to the fees.
UNISON had requested figures to show the impact on the number of claims being brought since the introduction of fees. Reluctantly, the government showed that the numbers fell immediately, and in particular, discrimination claims fell dramatically.

As the case developed, the courts agreed the fees were seen as unaffordable as the low – middle-class households would need to give up day to day expenses in order to be able to afford to bring the claim. This was in breach of policy considerations which required the courts to be accessible to all.

“It said the rule of law was undermined because, if people couldn’t reasonably afford to bring employment tribunal claims, this damaged the ability of the courts to enforce the law, and if Parliamentary laws can’t be enforced then the electoral process could become “a meaningless charade”. Adding fees impeded on access to justice so it was ultimately deemed unlawful.

The judges analyzed the use of precedent and statute when reaching a decision. When assessing the lawfulness of The Employment Tribunals and the Employment Appeals Tribunal Fees Order 2013, made by Lord Chancellor, they looked at the Tribunals, Courts and Enforcement Act 2007[18] (TCEA 2007). S 42 of the TCEA states that the Lord Chancellor must gain approval from the “Senior President of Tribunals” before introducing the fees and that he must also “take such steps as are reasonably practicable to bring information about fees under subsection (1) to the attention of persons likely to have to pay them.”

The Supreme Court unanimously allowed the appeal. They agreed that people should “be able to enforce their rights” and a remedy should be available. Their ratio decidendi was that the Lord Chancellor’s powers under s 42 of the Act did not include preventing access to justice. “Whether the making of the Fees Order was authorized by the Act?” The judges saw that there were statutory challenges involved and the order had a negative result on those affected, rather than contributing positively as the law should.

In the Supreme Court judgment, the court decided the fees were not appropriate, nor affordable to all. Obiter dicta in the case included a previous Lord Chancellor who had written to the chancery, disagreeing with the Fees Order: “In the case of the civil courts the citizen benefits from the interpretation of the law by the Judges and from the resolution of disputes, whether between the state and the individual or between individuals.”

Lord Reid’s gave his judgment on how the Act was unlawful and Lady Hale gave a statement on this issue of discrimination.

Impact

The judgment has been welcomed by many people who were afraid to speak out at risk of losing their job or those who could not afford to bring a claim. A legal impact of the case will now be that employers know that they are accountable for unfair practices, with employees able to bring court action at no cost to themselves. Socially, the case will impact on the dynamics of professional relationships, with the power handed back to the majority and an accessible route for redress if they feel they have been treated wrongly.
However, the decision has left some ambiguities and unanswered questions. It is not clear how claimants will be reimbursed, how an employer will reimburse a group claim or if the employer, in turn, will be reimbursed.

Furthermore, it was clear that the government had been acting unconstitutionally when introducing the new legislation. The “free” claims had been cut to save money and after the order was quashed, the government have to reimburse anyone who has had to pay for a claim over the past 4 years, estimated to cost around £30-£35 million.

The introduction of this legislation and subsequent reimbursement of those who underwent the process has been seen to be counterproductive. This money will have to come out of government funding resulting in other public services being underfunded. It is possible however that the settlement on non-payment of fees will only be short lasting, with a new, affordable fee regime implemented sometime in the future.

Access to justice is becoming increasingly important in our complex society and we must recognize the need for, and uphold, these values. As shown above, the case was officially repealed on July 26, 2017, having found to be unlawful under English law. Subsequently, the law is more accessible to all, regardless of income, status or position and we can again see more prominent workers’ rights. I feel that this case has concluded successfully, and highlights the importance of having just and reasonable laws in society.