Landmark Ruling in UNISON v Lord Chancellor: Employment Tribunal Fees Unlawful Due to Access to Justice Concerns

Introduction

The case of UNISON, R (on the application of) v. Lord Chancellor ([2017] WLR(D) 552) marks a pivotal moment in the United Kingdom's legal landscape regarding access to justice. Brought before the United Kingdom Supreme Court, this case scrutinized the legality of the fees imposed by the Lord Chancellor on proceedings in Employment Tribunals (ETs) and the Employment Appeal Tribunal (EAT). The central issue revolved around whether these fees unlawfully hindered individuals' access to justice, thereby undermining their employment rights.

Summary of the Judgment

The Supreme Court, led by Lord Reed, concluded that the Fees Order introduced by the Lord Chancellor was unlawful both under domestic common law and under European Union (EU) law. The court held that the fees effectively prevented access to justice for many individuals, particularly those from low to middle-income households. The ruling emphasized that access to tribunals is a constitutional right integral to the rule of law, and any legislative measures impeding this access must be proportionate and justified.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that shape the understanding of access to justice and the limits of statutory powers:

• Donoghue v Stevenson [1932] AC 562: Established the modern concept of negligence and the duty of care.
• R v Secretary of State for the Home Department, Ex p Saleem [2001] 1 WLR 443: Reinforced the inherent right of access to courts.
• R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275: Highlighted that subordinate legislation cannot undermine specific statutory rights unless expressly authorized.
• Attorney General v Times Newspapers Ltd [1974] AC 273: Elaborated on the constitutional importance of unimpeded access to the courts.
• R v Lord Chancellor, Ex p Witham [1998] QB 575: Demonstrated that fee structures undermining access to courts are unlawful.

These cases collectively informed the court's perspective on the inviolability of access to justice and the constraints on legislative authority in imposing financial barriers.

Legal Reasoning

The court's legal reasoning hinged on two principal principles:

• The Constitutional Right of Access to Justice: Rooted in the rule of law, this principle asserts that individuals must have unimpeded access to judicial and quasi-judicial bodies to enforce their rights.
• Limits on Statutory Powers: Subordinate legislation (like the Fees Order) cannot erode specific statutory rights unless explicitly authorized by primary legislation.

The court scrutinized whether the Fees Order, enacted under the Tribunals, Courts and Enforcement Act 2007, respected these principles. It evaluated the proportionality of the fees, considering their impact on individuals' ability to seek redress. The analysis revealed that the fees introduced a significant barrier to justice, particularly affecting those who could least afford them. The availability of fee remissions was deemed insufficient to mitigate this barrier, as remission eligibility was narrowly defined and rarely applied.

Impact

The ruling has profound implications for the UK's legal system and access to justice framework:

• Access to Employment Tribunals: By declaring the Fees Order unlawful, the court reaffirms the necessity of free access to tribunals for enforcing employment rights.
• Legislative Scrutiny: Future legislative measures imposing financial barriers on access to justice will require rigorous justification and adherence to proportionality principles.
• Judicial Independence and Integrity: The judgment underscores the judiciary's role in safeguarding constitutional rights against legislative overreach.
• Potential for Reform: The decision may prompt a re-evaluation of fee structures across various tribunals and courts to ensure they do not impede access to justice.

Additionally, the ruling aligns UK law with broader EU principles, particularly concerning the effective enforcement of rights and the prohibition of indirect discrimination.

Complex Concepts Simplified

Conclusion

The Supreme Court's decision in UNISON v Lord Chancellor is a landmark judgment that reaffirms the foundational importance of access to justice within the UK's constitutional framework. By declaring the imposition of fees on Employment Tribunals unlawful, the court has sent a clear message that financial barriers cannot undermine individuals' ability to enforce their statutory rights.

This ruling not only rectifies the immediate injustice caused by the Fees Order but also sets a precedent ensuring that future legislative actions respect and uphold the essential right to access judicial and quasi-judicial bodies. The judgment serves as a safeguard against the erosion of legal protections and underscores the judiciary's role in balancing legislative intent with constitutional imperatives.

Moving forward, stakeholders must heed this precedent to foster a more equitable and accessible legal system, ensuring that all individuals, regardless of economic standing, can seek justice without prohibitive financial constraints.