Thursday, 27 July 2017
Employment Tribunal Fees ruled unlawful
Access to justice was made difficult (perhaps impossible) for many people through the removal of whole areas from legal aid (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) and by the introduction of fees to access the law in, for example, employment tribunals - the Employment Tribunals and Employment Appeals Tribunal Order 2013. In making this Order, Mr Grayling used powers in section 42 of the Tribunals, Courts and Enforcement Act 2007. The "fees order" resulted in a large reduction in the number of claims brought to Employment Tribunals including so-called "Type B" claims in areas such as unfair dismissal, equal pay and discrimination. Due to events in the workplace, women are more likely to have to bring such claims than men. Nevertheless, the reasons for making the Fees Order included a desire to deter vexatious claims.
The Trade Union - UNISON -
challenged the legality of the fees order by way of judicial review but was unsuccessful before the High Court and the Court of Appeal  EWCA Civ 935 (Moore-Bick, Davis and Underhill LJJ). On Wednesday 26th July, the Supreme Court quashed the Fees Order :
The Order was unlawful under both domestic and EU law because it prevents access to justice and it had that effect as soon as it was made. It was therefore unlawful ab initio and had to be quashed.
The constitutional right of access to the courts is inherent in the rule of law and so, as a matter of domestic law, the Order was unlawful because it effectively prevented access to justice. The evidence before the court showed that there had been a dramatic and persistent fall in the number of claims and the fees were the most frequently cited reason for not submitting claims.
The Order also contravened the EU law guarantee of an effective remedy before a tribunal because it imposed disproportionate limitations on the enforcement of employment rights.
The Order was also indirectly discriminatory under the Equality Act 2010 because the higher fees for Type B claims put women at a particular disadvantage because events in the workplace result in women needing to bring more Type B claims than Type A claims.
This is a remarkable unanimous judgment given that the court grounded the unlawfulness of the Order in common law principle. The wording of the statutory power to impose fees (i.e. section 42) did not extend to impeding access to justice. Without the clearest of words, Parliament was not to be taken to have authorised fees incompatible with the rule of law. At para. 64 Lord Reed said:
"The issue concerning the effect of the Fees Order on access to justice was argued before the courts below on the basis of EU law, although some domestic authorities and judgments of the European Court of Human Rights were also cited. Before this court, it has been recognised that the right of access to justice is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law. The case has therefore been argued primarily on the basis of the common law right of access to justice, although arguments have also been presented on the basis of EU law and the European Convention on Human Rights. The appellant has also argued the discrimination ground, and has been permitted to advance a new ground of challenge, namely that the Fees Order is ultra vires because it frustrates the operation of a variety of statutory provisions. The argument advanced below on the basis of the Public Sector Equality Duty has not been pursued. (My emphasis).
Lord Reed discussed the common law principle at paras. 65 to 85 where His Lordship sets out admirably the reasons why access to justice is so vital in a democracy. Para. 68 is masterful:
"At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other."
It will be seen in the years to come how influential this fresh statement of the right to access to the courts proves to be. Less we get too excited we need to remember that, under the traditional UK constitutional arrangements the fundamental principle is the Sovereignty of Parliament - see the post by Carl Gardiner on his Head of Legal Blog - HERE. There is no legal reason why Parliament could not enact primary legislation containing clear wording aimed at achieving precisely that which the now quashed Fees Order attempted. Furthermore, if the matter were to be put into primary legislation then the courts would not be able to quash it. That is, as I say, the orthodox position. Whether the government will attempt to introduce such legislation remains to be seen.
The future of employment law in a POST-EU United Kingdom is also a matter of considerable concern since the constraint of EU law will be removed. This concern is shown by the opinion of Michael Ford QC (7th April 2016):
Brexit could risk legal and commercial chaos and would cause years of uncertainty for employers and employees - argues Michael Ford QC. The opinion was commissioned by the TUC. In the opinion, Ford comments that "It is easy to contemplate a complete reversal of the gradual increase in social regulation protecting workers which has taken place since the 1960s". The reader will need to consider the extent to which the present British government has a Deregulatory Agenda.
Worker's rights from the EU: The impact of Brexit - Michael Ford QC
It should be noted that the Equality Act 2010 gives effect to several EU Directives relating to employment matters - see Background to the Act. The stated aim of the European Union (Withdrawal) Bill is to take, as it were, a photograph of EU law on "Exit Day" and then apply Parliamentary "photoshop" to it afterwards. It is widely feared, and not without good reason, that many protections are likely to be dismantled once the UK is free from EU law.
In 1968, the Donovan Commission reported and recommended the creation of tribunals to handle employment claims. The tribunals were intended to be easily accessible, speedy, informal and with inexpensive procedure. At the present day, it cannot sensibly be claimed that either employment law or tribunal procedure is simple as demonstrated by this government website which sets out Procedure Rules and Practice Directions and guidance. Employers will often choose to be legally represented in tribunal cases whereas legal aid for claimants is not available for claims other than discrimination claims. It is very often the case that an employee cannot afford to instruct a Solicitor because their employment dispute is likely to have resulted in loss of income. It is not fees alone which deter people from access to justice.
The other side of the coin - employers:
One reason put forward for the introduction of fees was to deter vexatious claims - see para. 9 of the Supreme Court judgment. The question of whether those will now return is considered by the Institute of Directors in this article where it is said that many complaints were without merit and that employers would choose to settle rather than face the time, expense, and stress involved in defending themselves at tribunal.
UNISON website - UNISON legal victory sees employment fees scrapped.
Equality and Human Rights Commission- Employment tribunal fees unlawful and discriminatory says Supreme Court - "The fees to take a discrimination case to tribunal means many people having to walk away without redress, with employers let off the hook after making unlawful decisions."
Citizens Advice - Problems at work - Employment Tribunals
UK Human Rights Blog 27th July 2017 - The Price of Justice
Public Law for Everyone 26th July 2017 - Unison in the Supreme Court: Tribunal fees, Constitutional Rights and the Rule of Law
UCL Constitution Unit - Christina Lienen - Unison v Lord Chancellor: the things that landmark constitutional cases are made of
Administrative Law Matters - Paul Daly - Rights in the Review of Delegated Legislation: R (Unison) v Lord Chancellor  UKSC 51.