Employment tribunal fees; Constitutional right or Constitutional embarrassment?

The Supreme Court has now handed down its decision in the seminal case of R (An Application of Unison) -v- Lord Chancellor [2017]. In this case, the Supreme Court unanimously found that when Government Ministers introduced a system of fees to be paid in the Employment Tribunal they had acted illegally and had attempted to misapply the Will of Parliament.

It is of course extremely rare for the Courts to openly criticise Ministers in this way and we asked Graham Whitehouse, Employment Solicitor at leading Dorset Law Firm Blackburn & Co to explain the Court’s decision and what impact it is likely to have in the future.

Graham told us: “The importance of this decision should not be underestimated. To put it in context, most modern democracies have three separate and independent elements of government. In the UK these are Parliament who make the laws, the Judiciary who interpret those laws and the Executive who run the country with the laws given to it by Parliament.

The purpose of this separation of power is to impose a system of checks and balances on each element of government so that no one element can exceed its own power or authority. All of the elements of government are subject to the laws as enacted by Parliament and even Parliament itself is bound by the laws that it creates.

In the Unison case the Court ruled that when in 2013 the  Conservative / Lib Dem coalition Government used its executive powers and introduced an Order that required anyone looking to pursue a claim to the Employment Tribunal to pay a fee, they had exceeded their authority and had attempted to misapply the Will of Parliament.  

The Court found that by introducing fees, Ministers had failed to adhere and understand two of the most important and fundamental canons of English Law going all the way back to Magna Carta of 1215.

The Supreme Court found that as Parliament had enacted a number of laws that gave workers the right to seek redress in the Employment Tribunal by making the Order Ministers had impeded those workers from gaining access to justice and Ministers had therefore attempted to misapply the Will of Parliament. The Court went on to question whether Ministers actually understood the principle of the Rule of Law at all. 

In reaching its decision the Court looked at the effect that the introduction of fees had had on the number of claims being brought to the Employment Tribunal and found that the number of claims had fallen by around 70% but that there had been no discernible change in the types or nature of the claims being brought.

The Court also found that the cost of the fees that were introduced was in many cases disproportionate and that the value of the fee was for a fixed amount and was dependent only on the category of the claim being made, no account was taken of the value or complexity of the claim only the broad category that it fell into. So, a claim for wages attracted a fee of £390 whether the claim was a simple case for £1 or an extremely complicated case valued at £1,000,000. A claim for discrimination, for instance, attracted a fee of up to £1,200 no matter how complicated it was or how much time it would take to deal with.

The Court noted that when Ministers introduced fees, they provided that those on very low incomes could receive either full or partial remission of the fees. At the time Ministers anticipated that some 77% of claimants would qualify for remission, however, the Supreme Court noted that due to the rigorous assessment requirements, the actual figure of claimants receiving help with fees was around 29%.

The Court found that the vast majority of claimants’ looking to pursue a claim to the Employment Tribunal faced a harsh reality, if they could not pay the fee, they could not bring their claim.

The decision of the Supreme Court is extremely damning and shows that Ministers demonstrated a serious lack of understanding of constitutional matters. It should also be remembered that many of the Ministers behind the introduction of fees are still in office and the Court’s decision is likely to cause a great deal of embarrassment to them.

The wider implications of the decision are that fees are no longer payable for bringing a claim to the Employment Tribunal and any fees that have been paid since 2013, will have to paid back by the Government, amounting to a bill to tax payers of around £32,000,000.

 Although the Court's decision has been welcomed by Trade Unions, employers groups have raised concerns that it will lead to a flood of claims now being brought and to higher costs for employers which in turn will damage the fragile economy.

It is likely that the real impact of the Supreme Court’s decision will be to simply restore the number of claims being brought to the EmploymenTribunal toto its former pre fee levels. However, Ministers have already hinted that the idea of fees has not gone away completely and it is possible that at some time in the future Ministers will again  try to introduce a revised system of fees that does not fail foul of the Will of Parliament, but for the moment we can only wait and see what happens next.”

Should you wish to discuss the content of this article or any issues regarding employment matters please contact Graham Whitehouse at gw@blackburnand.co.uk