The most famous case on the rule of law for a generation? Employment tribunal fees declared unlawful

The Supreme Court have, this morning, handed down Judgment in the case of R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51, more commonly known as ‘the appeal against Employment Tribunal fees’.

In what almost every employment lawyer will view as ‘delightfully surprising’ for a court which is not known for keeping in-touch with the coal-face, the Judgment meets and joins hands with the principles of fairness that founded these Tribunals in the first place (following the Donovan Report back in 1968) and ruled that employment tribunal fees are unlawful.

An extract from the speech of Lord Reed (with whom all six Justices agreed) cannot go without mention if one is truly seeking to encapsulate the view of these unanimous judges on the role that Employment Tribunals (“ET”) have; where his lordship noted that:

“ETs are intended to provide a forum for the enforcement of employment rights by employees and workers, including the low paid, those who have recently lost their jobs, and those who are vulnerable to long term unemployment. They are designed to deal with issues which are often of modest financial value, or of no financial value at all, but are nonetheless of social importance”.

His Judgment also reminds the reader that:

“[I]t is necessary to bear in mind that the use which people make of ETs is governed more by circumstances than by choice. Every individual who is in employment may require to have resort to an ET, usually unexpectedly: for example, if they find themselves unfairly dismissed or the victim of discrimination. Persons whose employment rights have been breached, or who believe them to have been breached, are often under a practical compulsion to apply to an ET for redress”.

In 2007 the way was paved for fees when the then government introduced legislation which permitted charges to be levied. It was then on 29th July 2013 that the charging of fees commenced. The fees were £390 in total for some types of claim and £1,200 for the majority. The fee was higher still if one tried to challenge an ET decision since the EAT total fee for an appellant was £1,600.

Having set out what will likely be the most famous case on the rule of law for a generation (paragraphs 66 – 78) Lord Reed then conclusively found that the fees prevented access to justice and that they were therefore unlawful.

Social media has already erupted with comment upon the validity of the outcome and one can easily become embroiled in that. However it seems that the more interesting question in the landmark case is probably; what now? It seems that there are at least three categories of questions that will pose interesting starting points for debate.

1. What of those who have been denied access to an ET between 2013 and now?

   Lady Hale endorsed Lord Reed’s speech but added her own judgment on the nitty-gritty of the discrimination complaint which founded this challenge in the first instance. She observed that the charging of fees for all complaints had clearly “deterred meritorious claims at least as much as, if not more than, unmeritorious claims”. As a result of this applying across the board, and thus to those with protected characteristics who were to bring a discrimination complaint; she easily concluded that this must mean that there was discrimination in itself by deterring those discrimination complaints. It having been found to be discriminatory to deny access to justice in that way, it is easy to envisage that the MoJ are likely now not just uncomfortable at having to repay all fees that were wrongly charged to those who did pursue claims, but also the claims against them for denying someone their chance to bring a discrimination complaint as, itself, being an actionable claim of discrimination against the MoJ. I would not be at all surprised to see a class-action of this kind in the near future.

2. What will the government’s response be?

   Clearly blanket fees, even with a right to claim remission, are out of the question. Thus if the government do not wish to reverse the >70% reduction in ET claims that has taken place since 2013, they will have to impose some other hurdle (or, perhaps more properly termed; deterrent). Since the defence of justification applies to the indirect discrimination complaints brought by UNISON in this case the government would be well-advised to focus upon what and how they would deploy at that stage when called upon to do so, as they surely would be, if they are to introduce a revised charging regime. That will require more than passing regard to be had to statistical data which was expressly noted to be lacking in this case. Whilst one cannot help but hope for a world where no such charging takes place of those who require access to such a forum which, by its very nature deals almost exclusively with the very vulnerable, where the alternative is to recruit (and pay) more judges as well as to rent more Tribunal rooms, there does seem more than a minor note of sad inevitability about ‘Fees: mark 2’.

3. What does this mean for the role of ACAS and the mandatory Pre Claim Conciliation process?

   It was on 6th May 2014 that the absolute requirement to go through a period of conciliation was introduced before an individual was permitted to launch a claim in the ET. This was of course also designed to cut the use of the ET as a resource by seeking to facilitate more settlements in advance of proceedings being issued. Lord Reed observed in his speech that in 2014/2015 ACAS received 83,000 claimants who commenced this process. Since there is no requirement in law to engage meaningfully one can also understand why, now absent the unfair discriminatory barrier of ET fees, individuals may simply ask for the process to be concluded, and the usual Certificate issued, without trying to engage at all. It seems that at least one road to reducing the number of people who now have an increased desire (or as an equalities lawyer would more properly say: ability) to launch a claim in the ET is to require greater input within that process. It is extremely difficult to see how this could work in practice and plainly ACAS’ input would be key, but at least some possible routes might be either:

   a) to have a mandatory minimum period to explore conciliation save in particular circumstances of urgency; and/or
   b) a minimum level both of formulation of the issues and meaningful response to this.

So whilst practising lawyers, academics and law students may have been given enough to get along with for consideration now; all eyes turn to the government to see what their response will be at a time when Parliamentary capacity is at an all-time low.