Justice restored – How UNISON BEAT THE GOVERNMENT in the battle over employment tribunal fees

In 2017 UNISON won a landmark legal case against the government.

It’s been hailed as one of the most significant in the history of employment law.

One year on, the people behind the victory reflect on their long battle in the courts, and UNISON members share the kinds of experiences that remind us why the battle was so critical.

The case started in 2013, when Lord Chancellor Chris Grayling introduced employment tribunal fees, where previously use of such tribunals had been free of charge.
UNISON knew that the fees would destroy its members’ ability to seek justice in the employment courts – and immediately sprung into action.

The union’s single-handed legal battle spanned four and a half years and six hearings, before the Supreme Court unanimously found in its favour.
The judges’ verdict was hailed as a decisive assertion of the right to access to justice – not just for workers in Britain, but in other parts of the law where Whitehall is trying to raise the costs for ordinary people.

The Fees

Most of our hard-won workers’ rights – which have been fought for by trade unionists and others over centuries – are effective only because they can be enforced through employment tribunals and employment appeal tribunals.
In July 2013, this access to justice was dangerously restricted when the government decided to charge fees to everyone who wanted to go to an employment tribunal.

Suddenly, anyone who felt they had been illegally treated by their employer had to send a cheque or pay with a card online – for fees ranging from £390 to £1,600 – before their claim would even be considered.

You may need to go to an employment tribunal if you are:

  • Unfairly dismissed
  • Discriminated against (based on age, race, disability, gender, sexual orientation, religion or belief)
  • Paid below the National Minimum Wage
  • A woman being paid less than a man doing the same job (or the other way round).

Fighting the case

UNISON’s principle was that the introduction of employment tribunal fees was unlawful because they interfered with access to justice under both the UK’s common law and EU law.

The union also argued that fees frustrated the operation of Parliamentary legislation that granted employment rights, and discriminated unlawfully against women and other protected groups because of the complexity and duration – and therefore cost – of discrimination cases.

But the union’s lawyers needed evidence, in particular data that showed that the number of people accessing employment tribunals was falling since the introduction of fees.

At first the government didn’t want to make that data public, so UNISON submitted a Freedom of Information request and forced its hand.

And the official figures revealed exactly what UNISON had feared.

Between October and December 2013 there was a 76% drop in claims, compared to the same months in 2012.

While in the last three months of 2013 just over 10,000 claims were made, in the same period the year before, when there were no fees, 45,240 claims made (a difference of 34,398 claims).

The data showed an even bigger drop in discrimination claims.

Even with this information, the legal process was long and hard. Over four years UNISON’s legal team had to stand before the High Court and the Court of Appeal six times.

But in March 2017, UNISON’s appeal was heard in front of the Supreme Court, the highest court in the UK, with the result announced in late July.

The Supreme Court judges unanimously ruled that the government was acting unlawfully and unconstitutionally when it introduced the fees.

The judges added that if people couldn’t reasonably afford to bring employment tribunal claims, then Parliament’s laws couldn’t be enforced – turning the electoral process into a “meaningless charade”.

“The 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 judge, Lord Justice Reed

“This is a major victory for employees everywhere. UNISON took the case on behalf of anyone who’s ever been wronged at work, or who might be in future.”

UNISON general secretary Dave Prentis

Read more on this story including more information on the legal team and some members stories by clicking here

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