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Supreme Court holds Employment Tribunal fees order unlawful

The Supreme Court has unanimously allowed UNISON’s appeal against the legality of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The Court has rejected comprehensively the justifications advanced by the Lord Chancellor to defend the fees charged. The Judgment contains a strong restatement of the importance of employment law rights being enforceable:

“When Parliament passes laws creating employment rights, for example, it does so not merely in order to confer benefits on individual employees, but because it has decided that it is in the public interest that those rights should be given effect. It does not envisage that every case of a breach of those rights will result in a claim before an ET. But the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights. Equally, although it is often desirable that claims arising out of alleged breaches of employment rights should be resolved by negotiation or mediation, those procedures can only work fairly and properly if they are backed up by the knowledge on both sides that a fair and just system of adjudication will be available if they fail. Otherwise, the party in the stronger bargaining position will always prevail. It is thus the claims which are brought before an ET which enable legislation to have the deterrent and other effects which Parliament intended, provide Page 22 authoritative guidance as to its meaning and application, and underpin alternative methods of dispute resolution” (Paragraph 72, per Lord Reed JSC, with whom Lords Neuberger, Mance, Kerr, Wilson and Hughes agreed).

It is also apparent from the Judgment that the approach that the relevant departments took to the fees issue was flawed from the outset:

“The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings. The extent to which that viewpoint has gained currency in recent times is apparent from the consultation papers and reports discussed earlier. It is epitomised in the assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since “ET and EAT use does not lead to gains to society that exceed the sum of the gains to consumers and producers of these services” (Paragraph 66, per Lord Reed JSC).

More detailed comment on the decision will appear here soon..

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