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Chris Howells discusses Employment Tribunal fees decision

The long awaited decision of the Supreme Court in R (on the application of Unison) v Lord Chancellor) has been issued. The Supreme Court held that the introduction of fees was unlawful: both under domestic and European legislation. Significantly, the Supreme Court upheld Unison’s submission that for those on lower and middle income the introduction of fees meant that it was unaffordable to pursue claims in the Employment Tribunal.

 

The precise impact the introduction of fees had on the volume of cases isn’t clear. Some estimates suggest a drop of 79%. By most measures there was between 60- 70% reduction. The stated objective of the fee scheme had been to weed out unmeritorious claims. Whilst that is a noble objective, in reality the success rate of claims presented to Employment tribunals remained altered following the introduction of fees. As the Supreme Court noted, this meant that the fees were likely serving as a bar to meritorious cases being pursued for financial reasons whilst having no discernible impact on the claims that lacked merit.

 

The immediate implications of this decision are that, at least in the short term, fees will be scrapped and those who paid fees will be reimbursed. Once fees are scrapped it is likely that there will be a significant rise in the number of claims being brought. 

 

The case also raised a fascinating jurisprudential issue about the relationship between our elected Government and non-elected Judiciary. The Supreme Court didn’t shy away from tackling this issue in a way that was forceful and eloquent in equal measure (para 68):

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. 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. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perf

 

The long awaited decision of the Supreme Court in R (on the application of Unison) v Lord Chancellor) has been issued. The Supreme Court held that the introduction of fees was unlawful: both under domestic and European legislation. Significantly, the Supreme Court upheld Unison’s submission that for those on lower and middle income the introduction of fees meant that it was unaffordable to pursue claims in the Employment Tribunal.

 

The precise impact the introduction of fees had on the volume of cases isn’t clear. Some estimates suggest a drop of 79%. By most measures there was between 60- 70% reduction. The stated objective of the fee scheme had been to weed out unmeritorious claims. Whilst that is a noble objective, in reality the success rate of claims presented to Employment tribunals remained altered following the introduction of fees. As the Supreme Court noted, this meant that the fees were likely serving as a bar to meritorious cases being pursued for financial reasons whilst having no discernible impact on the claims that lacked merit.

 

The immediate implications of this decision are that, at least in the short term, fees will be scrapped and those who paid fees were will be reimbursed. Once fees are scrapped it is likely that there will be a significant rise in the number of claims being brought. 

 

The case also raised a fascinating jurisprudential issue about the relationship between our elected Government and non-elected Judiciary. The Supreme Court didn’t shy away from tackling this issue in a way that was forceful and eloquent in equal measure (para 68):

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. 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. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.” (emphasis added)