UNISON, R (on the application of) v Lord Chancellor

Factual and Procedural Background

The Appellant, a trade union, sought judicial review of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (“the Fees Order”). Before July 2013 employees could lodge claims in Employment Tribunals (“ETs”) or appeal to the Employment Appeal Tribunal (“EAT”) without paying a fee. The Fees Order introduced issue and hearing fees ranging from £390 to £1,200 for single claimants, with higher amounts for group claims and for EAT appeals.

The Appellant contended that the fees unlawfully restricted access to justice. Two sets of judicial review proceedings were commenced. Both were dismissed by the Divisional Court, and the appeals were dismissed by the Court of Appeal. The Supreme Court (constituted by Judge Reed and five concurring judges) heard a final appeal. Several entities intervened, including “Entity A” and “Entity B”, but the principal respondent remained the Lord Chancellor (“Respondent”).

Legal Issues Presented

1. Whether the Fees Order is ultra vires the enabling power in s. 42(1) Tribunals, Courts and Enforcement Act 2007 because it unjustifiably hinders the common-law right of access to justice.
2. Whether the Fees Order unlawfully frustrates or renders nugatory specific statutory employment rights created by Parliament and/or EU law.
3. Whether, in respect of EU-derived rights, the Fees Order infringes the principles of effectiveness and effective judicial protection under EU law and the Charter of Fundamental Rights.
4. Whether the differential fee structure amounts to indirect discrimination under the Equality Act 2010 (addressed separately by Judge Hale).

Arguments of the Parties

Appellant's Arguments

• The level of fees causes a “sharp, substantial and sustained” fall (≈66-70%) in ET claims, demonstrating that many workers cannot realistically afford to litigate.
• The Order contravenes the common-law constitutional right to unimpeded court access and violates EU principles of effectiveness and proportionality.
• By making many statutory rights practically unenforceable, the Order is ultra vires and frustrates legislative intent.
• The fee structure disproportionately deters low-value or non-monetary claims and discriminates indirectly against women and other protected groups.

Respondent's Arguments

• Fees merely shift an appropriate share of ET/EAT running costs from taxpayers to users and encourage settlement or the avoidance of weak claims.
• Full remission is available for the poorest; others can “save up” by foregoing non-essential expenditure. Exceptional cases can be met by discretionary remission.
• No individual claimant had provided evidence of being unable to pay; therefore access to justice was not proved to be blocked in concrete cases.
• The fall in claim numbers could partly be explained by economic improvement and Acas conciliation.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Reed emphasised that the common-law right of access to justice is “inherent in the rule of law” and cannot be curtailed without express Parliamentary mandate. Relying on domestic authorities and EU/Convention jurisprudence, the Court applied a two-stage inquiry:

1. Does the measure impede access to justice?
   Evidence showed a ≈70% reduction in ET claims post-fees, disproportionately affecting low-value and non-monetary claims. Survey data confirmed that affordability deterred about 10% of potential claimants notified to conciliation. Hypothetical household models demonstrated that fees required sacrificing ordinary living standards for prolonged periods. Accordingly, the fees “effectively prevent” many individuals from exercising statutory rights.
2. If so, is the impediment justified as reasonably necessary?
   The stated aims—cost-sharing, deterring weak claims, encouraging settlement—were legitimate but the chosen fee levels were not the least intrusive means:
   • Cost recovery was far below projections (≈13% after remissions) because demand was highly price-sensitive; lower fees might yield greater revenue.
   • No evidence showed that high fees selectively filtered out weak claims; statistics indicated a higher proportion of unsuccessful cases post-fees.
   • Settlement rates through conciliation had not improved; some respondents delayed negotiation hoping claimants would abandon claims.

Because the Order both priced claimants out and rendered many claims irrational (fees exceeding likely awards), it failed the proportionality test under common law and EU law. On EU-derived rights, the Order also breached the principles of effectiveness and Article 47 of the Charter. Judge Hale agreed on these points and indicated that, were it necessary, the fee differential for “Type B” claims could not be justified under indirect discrimination principles.

Holding and Implications

HELD: The Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 is ULTRA VIRES AND QUASHED AB INITIO.

Implications: All fees collected under the Order are liable to repayment; ET and EAT proceedings revert to a no-fee regime unless and until a lawful replacement is enacted. The judgment re-affirms the constitutional status of access to justice, sets a high threshold for any future fee-charging schemes, and strengthens both domestic and EU doctrines safeguarding judicial access.