R (on the application of Unison) v Lord Chancellor

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Reed,Lord Neuberger,Lord Mance,Lord Kerr,Lord Wilson,Lord Hughes,Lady Hale
Judgment Date26 Jul 2017
Neutral Citation[2017] UKSC 51

[2017] UKSC 51

THE SUPREME COURT

Trinity Term

On appeal from: [2015] EWCA Civ 935

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Mance

Lord Kerr

Lord Wilson

Lord Reed

Lord Hughes

R (on the application of UNISON)
(Appellant)
and
Lord Chancellor
(Respondent)

Appellant

Dinah Rose QC

Karon Monaghan QC

Iain Steele

Matthew Purchase

(Instructed by UNISON Legal Services)

Respondent

David Barr QC

Victoria Wakefield

(Instructed by The Government Legal Department)

Intervener (1)

Michael Ford QC

Mark Whitcombe

Spencer Keen

(Instructed by Equality and Human Rights Commission)

Intervener (2)

(Written submissions only)

Aidan O'Neill QC

(Instructed by Balfour & Manson)

(1) Equality and Human Rights Commission

(2) Independent Workers Union of Great Britain

Heard on 27 and 28 March 2017

Lord Reed

( with whom Lord Neuberger, Lord Mance, Lord Kerr, Lord Wilson and Lord Hughes agree)

1

The issue in this appeal is whether fees imposed by the Lord Chancellor in respect of proceedings in employment tribunals ("ETs") and the employment appeal tribunal ("EAT") are unlawful because of their effects on access to justice.

2

ETs have jurisdiction to determine numerous employment-related claims, most of which are based on rights created by or under Acts of Parliament, sometimes giving effect to EU law. They are the only forum in which most such claims may be brought. The EAT hears appeals from ETs on points of law. Until the coming into force of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893 ("the Fees Order"), a claimant could bring and pursue proceedings in an ET and appeal to the EAT without paying any fee. The Fees Order prescribes various fees, as will be explained.

3

In these proceedings for judicial review, the trade union UNISON (the appellant), supported by the Equality and Human Rights Commission and the Independent Workers Union of Great Britain as interveners, challenges the lawfulness of the Fees Order, which was made by the Lord Chancellor in the exercise of statutory powers. It is argued that the making of the Fees Order was not a lawful exercise of those powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups.

4

The issues relating to discrimination are addressed in the judgment of Lady Hale, with which I respectfully agree. The present judgment deals with the remaining issues.

The statutory basis of the Fees Order
5

Section 42 (1) of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act") provides that the Lord Chancellor may by order prescribe fees payable in respect of anything dealt with by the First-tier and Upper Tribunals or by an "added tribunal". Section 42(3) defines an "added tribunal" as a tribunal specified in an order made by the Lord Chancellor. The ET and the EAT were so specified by the Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013 (SI 2013/1892).

The background to the Fees Order
6

Relationships between employers and employees are generally characterised by an imbalance of economic power. Recognising the vulnerability of employees to exploitation, discrimination, and other undesirable practices, and the social problems which can result, Parliament has long intervened in those relationships so as to confer statutory rights on employees, rather than leaving their rights to be determined by freedom of contract. In more recent times, further measures have also been adopted under legislation giving effect to EU law. In order for the rights conferred on employees to be effective, and to achieve the social benefits which Parliament intended, they must be enforceable in practice.

7

In 1968 the Donovan Report (the Report of the Royal Commission on Trade Unions and Employers' Associations, Cmnd 3623) recommended that labour tribunals should be established to provide "an easily accessible, speedy, informal and inexpensive procedure" for the settlement of employment disputes (para 578). As a result, the jurisdiction of industrial tribunals, originally established by the Industrial Training Act 1964 to hear appeals concerning training levies, was extended to include jurisdiction over a wide range of employment rights. In 1998, they were renamed employment tribunals.

8

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. Their procedural rules, which include short limitation periods and generous rights of audience, reflect that intention. It is also reflected in the fact that, unlike claims in the ordinary courts, claims in ETs could until recently be presented without the payment of any fee. The Leggatt Report (the Report of the Review of Tribunals, 2001) identified the absence of fees as one of the three elements which had rendered ETs successful.

9

In January 2011 the Government published a paper entitled Resolving Workplace Disputes: A Consultation, in which it announced its intention to introduce fee-charging into ETs and the EAT. Charging fees was considered to be desirable for three reasons. First, and most importantly, fees would help to transfer some of the cost burden from general taxpayers to those that used the system, or caused the system to be used. Secondly, a price mechanism could incentivise earlier settlements. Thirdly, it could dis-incentivise unreasonable behaviour, such as pursuing weak or vexatious claims.

10

Detailed proposals were published in December 2011 in a consultation paper issued by the Ministry of Justice entitled Charging Fees in the Employment Tribunals and the Employment Appeal Tribunal. Two alternative options for ETs were discussed, one of which went on to form the basis of the system set out in the Fees Order. The option which was ultimately preferred (Option 1) based the fee on the subject-matter of the claim (since the level of tribunal resources used generally depends on the complexity of the issues raised by the claim) and on the number of claimants (since claims brought by two or more people that arise from the same circumstances are processed together as multiple claims). It was proposed that an "issue fee" should be paid at the time of lodging the claim, and that a further "hearing fee" should be paid in advance of a final hearing.

11

The paper explained that the main purpose of a fee structure was to transfer part of the cost burden from the taxpayer to the users of the service, since a significant majority of the population would never use ETs but all taxpayers were being asked to provide financial support for this service. However, fees must not prevent claims from being brought by making it unaffordable for those with limited means. A fee remission system would therefore be a key component of the fee structure. The other issues taken into account were the importance of having a fee structure which was simple to understand and administer, and the importance of encouraging parties to think more carefully about alternative options before making a claim.

12

The paper noted that the impact of fees on the number of claims was difficult to forecast, in the absence of research concerned specifically with ET users. Research into the impact of fee-charging in the civil courts suggested that tribunal users required to pay a fee would not be especially price sensitive. The charging of fees in two stages, at the commencement of the proceedings and prior to a final hearing, was intended to reflect the cost of the services provided at each stage, and to encourage users to consider settlement during as well as before the tribunal process.

13

An impact assessment was published in May 2012. It concluded that it was not possible to predict how claimants would respond to the introduction of fee-charging. Two alternative assumptions were therefore made for modelling purposes. On the low response scenario, demand was assumed to decrease by 1% for every £100 of fee. On the high response scenario, demand was assumed to decrease by 5% for every £100 of fee. The methodology was then to place an economic value on the costs and benefits of implementing Option 1. One of the non-monetised benefits was identified as being "reduced 'deadweight loss' to society as consumption of ET/EAT services is currently higher than would be the case under full cost recovery". In that regard, the analysis proceeded on the basis that the consumption of ET and EAT services without full cost recovery resulted in a "deadweight loss" to society. As was stated:

"This assumes that there are no positive externalities from consumption. In other words, 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." (p 38)

Under the heading "Justice Impact Test", the document adverted only to the financial impact on HM Courts and Tribunals Service (HMCTS).

14

A response to the consultation and an equality impact assessment were published in July 2012. The response announced that the Government had decided to implement Option 1 with some amendments. Access to justice would be maintained by ensuring via the remissions scheme that those who could not afford to pay fees were not financially prevented from making a claim. Suggestions that the deterrence of individual claims would have wider societal impacts were rejected.

15

On 25 April 2013 a draft of the Fees Order was laid before...

To continue reading

Request your trial
134 cases
  • BF (Eritrea) v Secretary of State for the Home Department
    • United Kingdom
    • Supreme Court
    • 30 July 2021
    ...1 WLR 4733 (“ Legal Aid Casework”) in his written submissions and the decision of this court in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) (Nos 1 and 2) [2017] UKSC 51; [2020] AC 869 (“ UNISON”) in his oral submissions. Mr Hermer submitted that the gui......
  • The Law Association of Trinidad and Tobago v Dr. Keith Rowley the Prime Minister of the Republic of Trinidad and Tobago
    • Trinidad & Tobago
    • High Court
    • 19 February 2020
    ...of the relevant principle must have a reasonable justification. That approach can be seen, for example, in R (UNISON) v Lord Chancellor [2017] UKSC 51; [2017] 3 WLR 409, paras 80–82 and 88–89, where earlier authorities were discussed. A prerogative power is, of course, different from a st......
  • R (on the application of Broomfield and Others) v Revenue and Customs Commissioners
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 27 July 2018
    ...in the Haworth case. He also relied upon the judgment of Lord Reed, with whom the other members of the Supreme Court agreed, in R (Unison) v Lord Chancellor [2017] 3 W.L.R. 409 especially at paragraphs 76, 78 and 80 to the effect that statutory powers authorising an intrusion upon the right......
  • Ahmed Adiatu v HM Treasury
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 15 June 2020
    ...and rejected a PSED challenge to the Fees Order. This challenge was not renewed when the case was further appealed to the Supreme Court [2017] UKSC 51; [2017] ICR 1037, and so the Supreme Court did not consider the argument relating to the PSED. 224 Though the Court of Appeal rejected the ......
  • Request a trial to view additional results
6 firm's commentaries
  • CABLE: Current Awareness Bulletin - August 2017
    • United Kingdom
    • Mondaq UK
    • 12 September 2017
    ...you up to date with recent legal developments. Tribunal Fees R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51 - Supreme Court quashes employment tribunal The introduction of employment tribunal and employment appeal tribunal (EAT) fees has seen a dr......
  • What Does IP Completion Day Mean For The Status Of EU Law In The UK?
    • United Kingdom
    • Mondaq UK
    • 11 December 2020
    ...begin to base decisions on common law principles which mirror EU principles - as the Supreme Court did in R (Unison) v Lord Chancellor [2017] UKSC 51. Where a common law analogue cannot be found, EU principles could be used as an aid to interpretation and a source of inspiration for the dev......
  • Supreme Court Unanimously Holds That Extended Prorogation Of Parliament Is Unlawful
    • United Kingdom
    • Mondaq UK
    • 1 October 2019
    ...the executive - and clarifies the limits on the executive's prerogative powers. It builds on cases such as R (UNISON) v Lord Chancellor [2017] UKSC 51 in order to contribute to “the constitutional history of this country [which] is the history of the prerogative powers of the Crown being ma......
  • Supreme Court Quashes Employment Tribunal Fees
    • United Kingdom
    • Mondaq UK
    • 14 September 2017
    ...those claimants who have paid fees over the last 4 years. R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51 Judgment Press The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought ab......
  • Request a trial to view additional results
6 books & journal articles
  • Inadequacy of Remedies in Cases of Human Trafficking and Modern Slavery
    • Ireland
    • Irish Judicial Studies Journal Nbr. 2-19, July 2019
    • 1 July 2019
    ...of HMRC enforcing the national minimum wage requirements after this period on behalf of the victim. 25 R (UNISON) v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409. [2019] Irish Judicial Studies Journal Vol 3(2) 39 IRISH JUDICIAL STUDIES JOURNAL Services Ltd , 26 Supperstone J granted summ......
  • CONTRACTUAL AUTONOMY, PUBLIC POLICY AND THE PROTECTIVE DOMAIN OF LABOUR LAW.
    • Australia
    • Melbourne University Law Review Vol. 44 Nbr. 2, December 2020
    • 1 December 2020
    ...Murray, The Law of Work (Oxford University Press, 2nd ed, 2011) 164. (86) Bogg, 'The Common Law Constitution at Work' (n 5) 516. (87) [2020] AC 869 (88) Ibid 897-8 [72]. (89) Bogg, 'The Common Law Constitution at Work' (n 5) 516. (90) Ibid. (91) Ferguson (n 13) 1222. (92) Collins, 'Independ......
  • The Common Law Constitution at Work: R (on the application of UNISON) v Lord Chancellor
    • United Kingdom
    • The Modern Law Review Nbr. 81-3, May 2018
    • 1 May 2018
    ...my gratitudeto the Philip Leverhulme Tr ust for its generous support of my work. All errors are mine alone.1R (UNISON) vLord Chancellor [2017] UKSC 51. I am indebted to the following blog posts andforthcoming articles, which responded to the ramifications of this case rapidly and impressivel......
  • Our Herculean Judiciary?: Interpretivism and the Unenumerated Rights Doctrine
    • Ireland
    • Irish Judicial Studies Journal Nbr. 1-20, January 2020
    • 1 January 2020
    ...Public Law (Cambridge 2015) 144). 38Recent cases such as R (Evans) v Attorney General [2015] UKSC 21 and R (UNISON) v Lord Chancellor [2017] UKSC 51 are particularly strong examples of the increasing willingness of the UK courts to use common law principles to place constraints on Acts of P......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT