History was made by the Supreme Court today (26 July 2017) when it quashed the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 (Fees Order) – meaning that from today fees will cease to be payable for claims in the Employment Tribunal (ET) and Employment Appeal Tribunal.
In Unison v Lord Chancellor, 7 Supreme Court Justices (SCJs) unanimously allowed Unison’s appeal against the decision of the Court of Appeal, which had upheld two Divisional Court rulings against the public services union’s claim that the Fees Order prevents access to justice and is unlawful. Not only will fees cease to be payable for claims in ET from today, but fees paid in the past must be reimbursed, pursuant to an undertaking given by the Lord Chancellor.
The judgment highlights the high degree of protection given to the fundamental constitutional right of access to justice by the English common law and therefore has far-reaching consequences both within and outside of the world of labour law. Restrictions of all kinds on access to the court will be subjected to renewed scrutiny in light of the decision. Citing, inter alia, Magna Carta and the great 16th century jurist Sir Edward Coke, Lord Reed – in giving the principal judgment with which all other SCJ’s agreed – focussed on the importance of access to justice to the operation of the rule of law.
Lord Reed also criticised the Government’s approach to setting the fees at the level they had. The Government had erroneously assumed that the higher the fee the high the revenue, which Lord Reed pointed out contradicts “elementary economics and plain common sense” because the optimal price depends upon the elasticity of demand. He also noted the dramatic impact of the Fees Order on the number of claims, and especially low value claims, despite the Order failing to have deterred unmeritorious claims or making a significant contribution to tribunal costs.
Will De Fazio-Saunders