Ian Dodds Consulting Change Font size:
line
Ian Dodds Consulting » Legal Updates


August 2015

Legal Updates August 2015



May 2015

Legal Updates May 2015



April 2015

Legal Updates April 2015





March 2015

Legal Updates March 2015



February 2015

Legal Updates February 2015





November 28th 2014

Legal Updates November 28th 2014



September 26th 2014

Legal Updates September 26th 2014



August 29th 2014

Legal Updates August 29th 2014



August 1 2014

Legal Updates August 1st 2014





June 27th 2014

Legal Updates June 27th 2014



May 30th 2014

Legal Updates May 30th 2014



March 28th 2014

Legal Updates March 28th 2014



February 28th 2014

Legal Updates February 28th 2014



December 6th 2013

Legal Updates December 6th 2013



September 13th 2013

Legal Updates September 13th 2013



July 26th 2013

Legal Updates July 26th 2013



July 19th 2013

Legal Updates July 19th 2013



July 12th 2013

Legal Updates July 12th 2013



July 5th 2013

Legal Updates July 5th 2013



June 2013

Legal Updates June 2013



January 2013

Legal Updates January 2013



December 2012

Legal Updates December 2012



November 2012

Legal Updates November 2012



October 2012

Legal Updates October 2012



September 2012

Legal Updates September 2012



August 2012

Legal Updates August 2012



July 2012

Legal Updates July 2012



June 2012

Legal Updates June 2012



May 2012

Legal Updates May 2012



April 2012

Legal Updates April 2012



March 2012

Legal Updates March 2012



February 2012

Legal Updates February 2012



January 2012

Legal Updates January 2012



December 2011

Legal Updates December 2011



November 2011

Legal Updates November 2011



October 2011

Legal Updates October 2011



September 2011

Legal Updates September 2011



August 2011

Legal Updates August 2011



July 2011

Legal Updates July 2011



June 2011

Legal Updates June 2011



May 2011

Legal Updates May 2011



April 2011

Legal Updates April 2011



March 2011

Legal Updates March 2011



February 2011

Legal Updates February 2011



January 2011

Legal Updates January 2011



December 2010

Legal Updates December 2010



November 2010

Legal Updates November 2010



October 2010

Legal Updates October 2010



September 2010

Legal Updates September 2010



August 2010

Legal Updates August 2010



July 2010

Legal Updates July 2010



June 2010

Legal Updates June 2010



May 2010

Legal Updates May 2010



General Election 2010

General Election 2010 Employment Implications



April 2010

Legal Updates April 2010



March 2010

Legal Updates March 2010



February 2010

Legal Updates February 2010



January 2010

Legal Updates January 2010



December 2009

Legal Updates December 2009

Legal Updates

 

 

 
 
 
 

   
   

News Update

August 2017

Supreme Court rules Tribunal Fees Order is unlawful under both domestic and EU law and must be quashed

The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 came into force on 29 July 2013, under which a claimant bringing and pursuing proceedings in an ET and appeal to the EAT had to pay fees. The stated aims of the Fees Order were to transfer part of the cost burden of the tribunals from taxpayers to users of their services, to deter unmeritorious claims, and to encourage earlier settlement.

In R (on the application of UNISON) v Lord Chancellor, the trade union UNISON argued that the making of the Fees Order was not a lawful exercise of the Lord Chancellor’s statutory powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups.

The High Court and the Court of Appeal rejected UNISON’s argument, but the Supreme Court has upheld UNISON’s appeal ruling unanimously that the Tribunal Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful and must be quashed. The Supreme Court’s reasoning is summarised below.

The constitutional right of access to the courts is inherent in the rule of law: it is needed to ensure that the laws created by Parliament and the courts are applied and enforced. Tribunals are more than merely the providers of a service which is only of value to those who bring claims before them. As a matter of domestic law, the Fees Order is unlawful if there is a real risk that persons will effectively be prevented from having access to justice, or if the degree of intrusion into access to justice is greater than is justified by the purposes of the Fees Order.

The ET and EAT fees bear no direct relation to the amount sought and can therefore be expected to act as a deterrent to claims for modest amounts or non-monetary remedies (which together form the majority of ET claims). The recoverability of costs upon success cannot be decisive of the question of access to justice as that right is not restricted to the ability to bring successful claims. Indeed, the evidence before the Court shows that the effect of the Fees Order was a dramatic and persistent fall in the number of claims brought in ETs, with a greater fall in the number of lower value claims and claims in which a financial remedy was not sought.

The question of whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Where households on low to middle incomes can only afford fees by forgoing an acceptable standard of living, the fees cannot be regarded as affordable. Although the stated purposes of the Fees Order are legitimate aims, it has not been shown that the Fees Order was the least intrusive means of achieving those aims. The Fees Order is also unlawful as it contravenes the EU law guarantee of an effective remedy: it imposes disproportionate limitations on the enforcement of EU employment rights.

Finally, the Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher fees for type B claims put women at a particular disadvantage, because a higher proportion of women bring type B than bring type A claims. The charging of higher fees was not a proportionate means of achieving the stated aims of the Fees Order. Further, meritorious as well as unmeritorious claims might be deterred by the higher price, and there was no correlation between the higher fee and the merits of the case or incentives to settle.

Content

The aim is to provide summary information and comment on the case and the legal issues involved. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.


Website Management and SEO Consultancy by Amoo Business Nursery        Website Created by Toast.it