Unison's Supreme Court Victory
The Supreme Court ruled on Wednesday that employment tribunal fees are unlawful. They were cancelled immediately, and the government will have to pay back every claimant charged since fees were introduced in 2013. There are different estimates as to how much this could cost, but Unison, the public sector union which brought the litigation, puts it at £27 million.
Unison had twice fought unsuccessfully for a judicial review in the High Court, and lost an appeal. The appeal judgment acknowledged that the hefty decline in employment tribunals could not all be cases of ‘won’t pay’; ‘it must also reflect at least some cases of “can’t pay”.’ But the fees were allowed to stand because they did not make it ‘impossible, in practice’ for the poor to seek justice.
In the Supreme Court, Dinah Rose QC, for Unison, argued that this was the wrong legal test. Instead, she said, the courts should have applied a basic proportionality test – and the fees, as much as £1200, were massively out of step with the small sums typically awarded by tribunals. In Wednesday’s judgment, Lord Reed affirmed that under EU law, proportionality ‘is not determined solely by the affordability of the fees’. Other factors must also be considered, he said, including ‘whether non-payment may result in the claim’s never being examined on its merits’.
You didn’t have to pay the fees if you had less than £3000 in savings. But that included the value of property such as ‘a bicycle or a laptop’, as well as redundancy payments and your spouse’s savings. A woman made redundant because she was pregnant could be asked to ‘gamble almost half’ of her payout in order to seek justice, Rose argued. ‘It’s no surprise that’s a gamble that many would not be prepared to take,’ she said.
The past four decades have seen declining union membership and increasingly restrictive anti-strike laws. So for many aggrieved workers, tribunals are the only recourse. Many deal with relatively simple matters such as wage claims and breach of contract. The fees regime charged more for more complicated issues, including sex discrimination – which, the Supreme Court ruled, meant the government was breaking the 2010 Equality Act, as women were more likely to be affected. The judges also suggested that ministers had infringed Magna Carta, which did not prohibit court fees but offered ‘a guarantee of access to courts which administer justice promptly and fairly’.
The Ministry of Justice argued fees were set so high because lower tariffs would undermine the government’s objective of shifting costs from taxpayers to claimants. But this didn’t account for high fees deterring claims altogether. ‘It is elementary economics, and plain common sense,’ Lord Reed said, ‘that the revenue derived from the supply of services is not maximised by maximising the price.’ In January a government review found the number of cases had fallen by more than 60 per cent since 2013.
The verdict was a surprise to many; the government’s announcement that it would accept the ruling less so. Tribunal fees were introduced Chris Grayling among an ecstasy of reforms to the justice system. His successor Michael Gove scrapped a number of the most controversial changes. And that was before the Conservatives lost their parliamentary majority.
Theresa May has also portrayed herself as a friend of the workers. Amid concerns about the employment practices of ‘gig economy’ firms like Uber and Deliveroo, she commissioned a review from Matthew Taylor, a former adviser to Tony Blair. Earlier this month, Taylor recommended creating a new employment category of ‘self-employed contractors’ who could be paid less than the minimum wage if they chose to work when demand for services was low. It was presented as a step forward, but unions disagreed, saying it was just ‘more loopholes’ that bosses would ‘inevitably’ exploit. ‘Current employment laws … are sufficient – the issue has been one of enforcement, or lack of it,’ the GMB leader, Tim Roache, said.
Tribunals are a major part of this enforcement, so the lifting of fees will do far more for gig economy workers than anything in Taylor’s review. But they cannot compel employers to cough up. According to government data, fewer than half of claims are paid in full. One claimant told me that a tribunal awarded him £5300, but the process of enforcing it through a county court judgment was too complicated and expensive to pursue.
The Supreme Court has won praise for standing up to the government. But the case would not have been heard at all were it not for Unison, which carried on fighting in spite of three legal defeats. At the Supreme Court hearing, one judge seemed surprised to learn that Unison, when it supported members’ claims, paid their tribunal fees in full. The judgment this week is a reminder that unions are there for the benefit not just of their members, but of civil society at large.