A SUPREME Court ruling that employment tribunal fees are unlawful as they prevent people from bringing claims was today described as a “a resounding victory for justice” by a Scottish lawyer involved in the case.
Elaine Motion, Executive Chairman of Balfour+Manson, said the unanimous 7-0 decision sent out a clear message that the controversial decision by the UK Government to introduce tribunal fees in 2014 was wrong under both domestic and European law.
“The UK Supreme Court has decided unanimously that imposing significant fees has had a detrimental effect on access to justice,” said Mrs Motion, who represented one of the unions involved in bringing the legal challenge.
“This is is the one of the most significant judgments in employment law in the modern era. All the evidence pointed to fees denying the principle of access to justice – and the Supreme Court’s decision is therefore a resounding victory for justice itself.”
The ruling was delivered by seven law lords, with the main judgment written by Lord Reed, one of the two Scottish Justices of the UK Supreme Court.
One of the key sections of the ruling (Paragraph 91) says: “In order for the fees to be lawful, they have to be set at a level that everyone can afford, taking into account the availability of full or partial remission. The evidence now before the court, considered realistically and as a whole, leads to the conclusion that that requirement is not met…
“The fall in the number of claims has … been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.”
On the point of EU law, the judgment states (Paragraph 117): “Given the conclusion that the fees … are in practice unaffordable by some people, and that they are so high as in practice to prevent even people who can afford them from pursuing claims for small amounts and non-monetary claims, it follows that the Fees Order imposes limitations on the exercise of EU rights which are disproportionate, and that it is therefore unlawful under EU law.”
Balfour+Manson represented the Independent Workers Union of Great Britain (IWUGB) in the case, backing up the main claim by Unison. Elaine Motion added: “We were delighted to be able to intervene in the case and to get the outcome we had hoped for on behalf of low-paid workers across the UK.
“Employment tribunals were intended to provide a forum for enforcement of employment rights for all, including the lower paid. This judgment has helped restore that principle.”
The introduction of fees – of between £390 and £1200 – led to a reduction of up to 70 per cent in the number of tribunal cases coming forward between 2014-15 and 2015-16. Before then, any claimant could bring forward a claim for free.
The fees led to criticism that the low-paid were being priced out of bringing tribunal cases forward. Unions described the decision as “a gift to Britain’s worst bosses”.
The appeal argued successfully that fees were “not a lawful exercise of powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law”.
Balfour+Manson instructed leading QC Aidan O’Neill on behalf of the IWUGB.
Notes to Editors
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Balfour+Manson LLP is one of Scotland’s oldest law firms, founded in 1887. It employs 125 people at its head office in Frederick Street, Edinburgh and in Carden Place, Aberdeen.
To read full judgment of the UK Supreme Court, see: https://www.supremecourt.uk/cases/uksc-2015-0233.html