Name: Anurag Ghosh

PRN:18010143024

INTERNAL ASSIGNMENT 1

COMPARATIVE PUBLIC LAW

UNISON v. LORD CHANCELLOR

(2017) UKSC 51
FACTS:

 Until the enactment of the Employment Tribunals and Employment Appeals Tribunals’
Fees Order 2013 SI 2013/18931 claimants had always been able to bring proceedings in
an employment tribunal and appeal to the Employment Appeal Tribunal (EAT) without
needing to pay a fee.

 The Government’s primary stated aim for introducing fees was to transfer some of the
burden of running the tribunal system from general taxpayers to users of the system.

 It was also felt by some that it would deter unmeritorious or vexatious claims.
 Essentially the grounds of the UNISON appeal were that the order interfered unjustifiably
with the right of access to justice, under common law and EU law. 2

 Further, that the fees order frustrated the operation of parliamentary legislation granting
employment rights and discrimination protection against women and other protected
groups.
 The Supreme Court unanimously allowed the appeal largely on the basis that it restricted
access to justice under domestic law. 3

 The fees order made it practicably unaffordable for people to exercise rights conferred on
them by parliament.

 It is well known that after fees, applications to the employment tribunal fell by, in some
regions, up to 80%.

The Fees order consisted of these respective points:

The amount of the fees would be determined by the complexity of the claim and also depend on
which type of claim it was classified under; Type A were least complex claims and required less

1
https://www.lexology.com/library/detail.aspx?g=aed6a57c-6e20-49e2-934d-9aafeb237580
2
https://europa.eu/european-union/law_en
3
Unison vs Lord chancellor
time for resolution and hence fees was £390 for a single claimant and Type B claims had a fee of
£1200 as they were more complex and demanded longer hearings.

 Consequently, UNISON, a trade union 4supported by the Equality and Human Rights
Commission and the Independent Workers Union of Great Britain, as interveners
challenged the validity of the Fees Order in the Supreme Court arguing that the Order
interfered with the right of access to justice as it was not affordable by a lot of people and
that the fee structure was discriminatory in nature.
 It also argued that making of the Fees Order was not a lawful exercise of the Lord
Chancellor’s statutory powers.5

ISSUES:

 Whether fees imposed by the Lord Chancellor in respect of proceedings in Employment

Tribunal and Employment Appeal Tribunal are preventing access to justice?
 Whether Fees Order is justified?
 Whether the Fees Order frustrated the operation of Parliamentary legislation granting
employment rights?
 Whether it was discriminating against women?

RULES:

(i) Section 19 of the Equality Act 2010.6

(ii) Equality Act 2010.

ANALYSIS:

4
https://www.unison.org.uk
5
https://publications.parliament.uk/pa/ld201415/ldselect/ldconst/75/7511.htm
6
http://www.legislation.gov.uk/ukpga/2010/15/section/19
 The case revolved around a particular fact that a fee was being carried by the Tribunal’s
and Appellate Tribunals from persons making an appeal. Unison sought the judicial review of
this Fees Order on several grounds7, most importantly that it restricted the access to justice. Upon
this, the Supreme Court allowed the appeal against the Order.

The Court held that the Fees Order was unlawful as it prevented access to justice under the
domestic laws. It also held that for the fees to be lawful, it must be such that it is affordable by
everyone considering the availability of full or partial remissions. The Supreme Court also stated
that even a proof of real risk of interference with the right of access to justice of the people is
enough. And looking at the fall in the number of claims would be enough evidence to show that
the fees are very high, thus preventing access to justice. It is important to note here that
affordable fees would mean fees that people can reasonably afford without having to give up on
or compromise with their basic standard of living.

The Supreme Court was of the view that even if the fees are affordable they may make the effort
to claim futile if the award or amount of relief or compensation is much less than the cost and
fees or when there is not guarantee of reimbursement of the fees.

When the question arose as to whether the Fees Order can be seen as a necessary interference to
the access to justice, the Court was of the view that it was not shown that even a less fee
structure would be any less effective in meeting the main aim of this legislation i.e. sifting of
cost burden from taxpayers to users. The fees as fixed in the Order were also not necessary to
meet the other objectives of the Order and hence the Fees Order was not justified.

It is unlawful for a subordinate legislation to cut down a statutory right and the Fees Order does
so as it has the effect of making, the exercise of right conferred by Parliament, unaffordable to
people. It was also held that the Fees Order contravenes EU laws 8which guarantee effective
remedy before a Tribunal.

The Court while addressing the issue of the Fees Order being discriminatory in nature, held that
it was discriminatory under the Equality Act, 2010 9because women who were actually

7
https://www.blackstonechambers.com/news/r-unison-v-lord-chancellor/
8
European Union laws
9
https://www.legislation.gov.uk/ukpga/2010/15/contents
responsible for bringing more number of claims before the Tribunal were put to disadvantage.
Hence, the high fees of Type B claim are not justified and it also did not help in meeting the
purpose of shifting cost burden.

The Supreme Court judgment stated that the Order was unlawful ab initio 10and must be quashed.
As a result, it declared that the process of reimbursement would commence to reimburse all the
fees that have been paid since 2013.

CONCLUSION:

If we see, not all people living in a society are rich and can afford spending their part of
livelihood to achieve justice and neither people would spend a considerable amount to achieve
justice which may equal the amount needed to fight for justice. In reality, the fees imposed by
the Fees Order are not affordable by some people and are also high, preventing even people who
can afford them from pursuing small number of claims or even non-monetary claims. Even
though the Supreme Court acknowledged that there is no prohibition on charging court fees “per
se”11, but the judges were of the view that law provides for a constitutional right of access to the
people for achieving justice but the tribunal fees pose an obstacle for this access. Having failed
in its balancing act to ensure proper access to justice and finding the right funding mechanism,
while preventing spurious claims putting a strain on the tribunal system, it will be interesting to
see what steps the Government decides to take next. It seems likely that a new fee system will be
devised, however such system will need to set fees at an affordable level, incorporate a
sufficiently effective remission system and ensure that any disparity in fee levels is not indirectly
discriminatory. Whatever the Government’s plans, in the immediate term employment tribunals
are likely to feel the strain of an increase in cases brought before them; nonetheless,
commentators expect a steady rise rather than a deluge.

10
From the beginning
11
By themselves