UK Supreme Court cancels case fees to ensure workers’ access to justice
R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent), [2017] UKSC 51
Prior to the enactment of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (Fees Order) in the UK, a claimant could pursue and appeal employment proceedings without paying any fee. Fees were introduced under the Fees Order, with the amount varying depending on factors including the claim classification and complexity.
The trade union UNISON (the appellant), supported by the Equality and Human Rights Commission and the Independent Workers Union of Great Britain as interveners, challenged the legality of the Fees Order before the Supreme Court. They argued that the fees unjustifiably interfered with the right of access to justice under both the common law and European Union (EU) law, impeded statutory employment rights, and discriminated against women and other protected groups.
The government argued that the fees were lawful because there was no conclusive evidence that someone had been denied access to the courts due to inability to pay. It considered the fees affordable because poor people qualified for full fee cancellation and others had the disposable income to pay. Rejecting these arguments, the Court confirmed it does not require ‘conclusive evidence’ to determine denial of access to justice. It is sufficient if a real risk is demonstrated, and the Court inferred from the sharp, substantial, and sustained fall in the number of claims that a significant number of people who would otherwise have brought claims found the fees to be unaffordable. The
discretionary fee cancellation was deemed inadequate as the problems identified were systemic rather than confined to exceptional circumstances. It further held that it is not only unaffordable fees that prevent access to justice, but also circumstances where fees would render it futile or irrational to bring a claim. Significantly, the Court found that the fees cannot be regarded as affordable “[w]here households on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living.”
The Court determined that even an interference with access to the courts which is not insurmountable will be unlawful unless it can be justified as reasonably necessary to meet a legitimate objective. There were three justifications given for the impositions of fees. First, that fees would shift some of the cost burden from taxpayers to those who used the system. Second, to disincentivize pursuing weak or vexatious claims. Third, to encourage earlier settlements. On the available evidence, the Court rejected each justification.
The Court also found the Fees Order to be indirectly discriminatory because the higher fees for certain claims put women and others with protected characteristics, who bring a higher proportion of such claims, at a particular disadvantage.
The government’s Justice Minister announced that fee collection would be halted immediately and that the government would commence with a reimbursement process with respect to all fees paid since 2013.
This momentous decision has been celebrated as championing access to justice for workers. . The decision acknowledges the skewed power dynamics at play between workers and their employers and, in strongly upholding unimpeded access to courts and tribunals, emphasizes that in order for rights to be effective, they must be enforceable in practice.
The right to an adequate standard of living is a core human right under the International Covenant of Economic, Social and Cultural Rights. This judgment demonstrates that discourse concerning decent standards of living is impacting judicial and administrative decision-making, and by extension, public policy in the UK. The decision also emphasizes the need to safeguard access to justice. For the realization of human rights, the availability of effective judicial remedies is essential. Another significant outcome is the elevation of the issue of indirect discrimination against women
and others with protected characteristics, and the strong position on equality.
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