How UNISON won the most significant judicial intervention in the history of British employment law
On Wednesday 26 July, a grey and rainy morning, UNISON members and staff gathered outside the Supreme Court in London, awaiting the outcome of a four-year legal battle.
UNISON has been fighting the government in court over a vital component of workers’ rights and last week the Supreme Court – the UK’s highest court – finally unanimously ruled that the government was acting unlawfully. This is the story of how we got there.
Employment tribunals play a vital role in workers’ rights. They are a forum where workers (and employers) can seek justice, adjudicated by a legal expert – an employment judge.
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 tribunal appeals.
In 2013, this access to justice was restricted when the government decided to charge fees to everyone who wanted to go to an employment tribunal.
The fees were brought in at a time when the Ministry of Justice was facing huge budget cuts and the government said the aim of them was to transfer part of the cost of the tribunals to users of the service, to “deter unmeritorious claims”, and to encourage disputes to be settled earlier.
Anyone who felt they had been illegally treated by their employer suddenly had to include a cheque when they sent off their claim form, or pay with a card online, or the form wouldn’t even be looked at.
One of the members standing outside the Supreme Court on the day of the result was Clara Mason.
She was there because she feels passionately about access to employment tribunals. Clara is a teaching assistant, and is currently in the process of going through an employment tribunal. UNISON paid the fee for Clara’s tribunal; she can’t say much about her case because it’s ongoing, but she does say that if UNISON hadn’t paid the fee, she simply wouldn’t have gone to tribunal.
“The verdict today is important for everyone across the country, because it’s going to help a lot of families and people out there who’ve got issues with their employment.”
UNISON has been against the fees from the moment they were announced, because we knew they would hinder workers’ access to employment tribunals and employment appeal tribunals.
On the very day the fees were introduced (29 July 2013) UNISON went to the High Court to seek permission to bring judicial review proceedings.
But exactly how much are these fees? It depends on whether a claim is being brought by one person or a group of people and whether the claim fits into a ‘type A’ or a ‘type B.’
Type A claims generally require little or no work before the hearing, and have very short hearings. All other claims are type B; generally complex issues that require more scrutinising of evidence, such as unfair dismissal or discrimination.
For a single claimant, the total fees are £390 for a type A claim and £1,200 for a type B claim. There’s a different cost system for groups of people making a joint claim.
Simon Steptoe is a UNISON branch chair who was also waiting outside the Supreme Court to hear the verdict. He has helped UNISON members bring tribunal cases, with the fees paid for by UNISON.
But he says he’s also met people who aren’t members, who feel they have been treated unlawfully by their employer but don’t go to tribunal because they simply can’t afford it. “Not everybody’s in a union, but everybody should have access to justice,” he said.
Another member outside the court that day was Steven David Francis. He is also currently going through a dispute with his ex-employer, for unfair dismissal, and told us that going through an employment tribunal is intimidating.
“You are in front of a judge, and it’s quite daunting, because your employer’s representatives are there with their legal team, and you’re actually enabling questions to be put to them whilst you are all present. It’s off-putting, I wouldn’t like to have to do that without my union.”
Steven’s case has been going on since May 2012. He says that going through an employment tribunal is hard; it takes up time, it’s emotional, and the fees would add to the stress.
He also said he wouldn’t have taken his case if UNISON hadn’t paid the fees for him: “I couldn’t possibly countenance that because I would have to be mindful of my family and supporting them, especially as I lost my job.”
UNISON’s argument in court was that the introduction of employment tribunal fees was unlawful because the fees interfere unjustifiably with the right of access to justice under both the common law and EU law.
We also argued that the fees frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups.
The first time we went to court we were unsuccessful. The judge said that the claim brought was premature and new proceedings should be lodged, if and when further evidence was available.
As we knew we needed evidence, we had to get the data on how many people were accessing employment tribunals, to see if the numbers were going down. At first the government didn’t want to make that data public, so we submitted a Freedom of Information request.
The figures we got back showed us what we had expected – that there had been an immediate drop. The fees came into force on 29 July 2013, and the number of claims for July to September that year was down 56% on July to September 2012.
In May 2014, UNISON tried again and we were granted permission to appeal to the Court of Appeal. Meanwhile, the government had decided to publish the stats on employment tribunals on the Ministry of Justice website, and they revealed the number of claims were dropping rapidly.
The official figures for October 2013 to December 2013 showed that there had been a 79% drop in claims, compared to the same months in 2012. And April to June 2014 saw an 81% drop from the same period the year before.
We had several more attempts in court, and several setbacks (you can see them all in the timeline below), but UNISON didn’t give up.
Shantha David, UNISON’s legal officer who worked on the case from the very beginning, said: “This was too important a fight to give up. We knew our best chance was in front of the Supreme Court, so we just had to keep going.”
One of our key arguments was that the fees were discriminatory, because they had a bigger impact on women and other marginalised groups. The data had showed us that not only was there a general drop in claims, there was an even bigger drop in discrimination claims.
UNISON argued that discrimination cases cost more for claimants because of the complexity and time hearings took, and a higher proportion of women would bring discrimination cases.
The data also shows that other types of discrimination cases (disability, race and more) nose-dived after the fees were introduced. To see more of the data on employment tribunals, see our public service data blog.
In March this year, UNISON’s appeal was heard in front of the UK Supreme Court, with the result announced in late July. The Court unanimously ruled that the government was acting unlawfully and unconstitutionally when it introduced the fees four years ago.
As UNISON general secretary Dave Prentis said: “It’s 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.”
The Supreme Court decided that employment tribunal fees conflicted with the right to access to justice, and therefore undermined the rule of law.
It said the rule of law was undermined because, if people couldn’t reasonably afford to bring employment tribunal claims, this damaged the ability of the courts to enforce the law, and if the laws Parliament makes can’t be enforced then the electoral process could become “a meaningless charade”.
Not only does the result mean that anyone who needs to take their employer to court can do so for free from now on, it also means that anyone who has had to pay for that access to justice over the last four years will be reimbursed.
Now that’s what we call a success.
Original story first published on the UNISON website
UNISON provides quality legal services for employment-related and non-work issues at no extra cost to members and their family. In fact, UNISON provides the broadest range of legal help to union members in the UK.
Nearly all workers, regardless of the number of hours per week they work, have certain legal rights.
Employment tribunals deal with legal hearings between workers and employers when there is a dispute about employment rights that can’t be resolved less formally.