The Common Law Constitution at Work: R (on the application of UNISON) v Lord Chancellor
| Date | 01 May 2018 |
| DOI | http://doi.org/10.1111/1468-2230.12343 |
| Published date | 01 May 2018 |
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CASES
The Common Law Constitution at Work:
R (on the application of UNISON) vLord Chancellor
Alan Bogg∗
This note considers the radical significance of Supreme Court’s judgment in R (on the Application
of UNISON) vLord Chancellor (UNISON) on the unlawfulness of tribunal fees. It argues that
the decision marks the coming of age of the ‘common law constitution at work’. The radical
potential of UNISON lies in its generation of horizontal legal effects in disputes between private
parties. Recent litigation on employment status in the ‘gig economy’ is analysed through the
lens of UNISON and common law fundamental rights. The note identifies the various ways in
which the common law tests of employment status might be ‘constitutionalised’ in the light of
UNISON.
THE COMMON LAW CONSTITUTION AT WORK
AND THE PRINCIPLES OF PUBLIC LAW
In July 2017, the United Kingdom Supreme Court (UKSC) handed down a
decision of high constitutional importance in R (on the application of UNISON) v
Lord Chancellor1(UNISON). The UKSC struck down the tribunal fees regime
as unlawful. In a powerful judgment that attracted the concurrence of the
seven Justices, Lord Reed set out the principal ground of unlawfulness, which
was its infringement of the constitutional right of access to the courts.2This
fundamental constitutional right was described as ‘inherent in the rule of law’, a
constitutional principle of great significance in the English common law.3The
practical effect of the Fees Order, as experienced in the real lives of workers,
∗Professor of Labour Law, University of Bristol. I am extremely grateful to Ruth Dukes, Keith Ewing
and Michael Ford QC for comments on a draft. I am also grateful to participants at a staff seminar at
the University of Bristol for critical comments on an early sketch of the ideas. I record my gratitude
to 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 and
forthcoming articles, which responded to the ramifications of this case rapidly and impressively:
M. Elliott, ‘UNISON in the Supreme Court: Tribunal Fees, Constitutional Rights and the
Rule of Law’ at https://publiclawforever yone.com/2017/07/26/unison-in-the-supreme-court-
employment-fees-constitutional-rights-and-the-rule-of-law/; M. Ford QC, ‘It’s the Common
Law wotwon it’ at http://www.ier.org.uk/blog/its-common-law-wot-won-it (both last accessed
7 December 2017); M. Ford QC, ‘Employment Tribunals and the Rule of Law: R (UNISON)
v Lord Chancellor in the Supreme Court’ ILJ (forthcoming, 2018).
2 The UKSC also concluded that the Fees Order breached EU law and the principle of effective
judicial protection. There was also a separate judgment by Lady Hale that offered a valuable
critique of the Fees Order on the basis of indirect sex discrimination, in which all of the Justices
concurred. This piece will focus on the common law arguments.
3UNISON n 1 above, [66].
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(3) MLR 509–538
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
The Common Law Constitution at Work
was the effective prevention of their access to a court. UNISON now stands as
testament to the vitality of the ‘common law constitution’, that is, ‘the ideas
and values of which the rule of law consists are reflected and embedded in the
ordinary common law.’4
The tribunal fee regime was implemented by the Coalition Government in
2013. It followed the publication of a Ministry of Justice consultation paper
in January 2011 setting out the government’s intention to implement fees for
Employment Tr ibunal (ET) and Employment Appeal Tribunal (EAT) claims.5
Tribunal claims dropped off a cliff following its introduction.6The pattern
of precipitous decline was certainly clear by the time of the second hearing
in the Divisional Court.7The rapid and drastic real-world impact of tribunal
fees was probably beyond even the wildest dreams of its most fervent political
supporters. Lord Reed concluded that ‘there has been a dramatic and persistent
fall in the number of claims brought in ETs . . . of the order of 66–70%’.8
Furthermore, the remission scheme had not worked as expected, with the
‘proportion of claimants receiving remission . . . far lower than had been
anticipated.’9The Lord Chancellor’s discretionar y power to remit fees had been
exercised only rarely.10 The UKSC also referred to an Advisory, conciliation
and arbitration service (Acas) survey, published in 2015,11 which found that
a significant number of claimants did not pursue legal claims because of the
practical unaffordability of fees.12
The UKSC judgment in UNISON was surprising in two respects. The
first surprise was in its outcome. Prior to the judgment, UNISON had lost
twice in the Divisional Court and once in the Court of Appeal. Few would
have predicted the dramatic turn in fortunes in UKSC. In the lower courts,
no judge had been prepared to leap the slender evidential gap between the
aggregate statistics on tribunal claims to the unaffordability of the fees for
individual claimants. Since the behavioural pattern might be explained on the
basis that claimants were unwilling, as opposed to unable to pay, the principle
of effectiveness in EU law was not breached. By contrast, the UKSC brought
a dose of realism to its task, and this was reflected in a less formalistic approach
to the empirical evidence.
The second surprise was the character of the legal arguments relied upon to
challenge the lawfulness of the Fees Order. Pr ior to the UKSC judgment, legal
arguments had focused on the ‘principle of effectiveness’ in EU law, supported
by the jurisprudence of the European Court of Human Rights (ECtHR)
under Article 6 of the European Convention on Human Rights (ECHR).
4 T.R.S.Allan,Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford:
OUP, 1993) 4.
5 Ministry of Justice, Charging Fees in the Employment Tribunals and the Employment Appeal Tribunal
(December 2011).
6 For early academic criticism of t he fees regime, see K. D. Ewing and J. Hendy QC, ‘Unfair
Dismissal Law Changes: Unfair?’ (2012) 41 ILJ 115.
7 [2014] EWHC 4198 (Admin); [2015] CMLR 4.
8UNISON n 1 above at [39].
9ibid at [43].
10 ibid at [44].
11 ibid at [45] - [46], discussing Acas, Evaluation of Acas Early Conciliation 2015 (2015).
12 ibid at [46].
510 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(3) MLR 509–538
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