In a landmark legal victory, the Supreme Court has ruled that employment tribunal fees are “unlawful”, and in doing so reinstated a centuries-old right to justice that was first outlined in the Magna Carta.
The decision to introduce the fees – of up to £1,200 – in 2013 was labelled immoral and illiberal, and their severity was enough for the court’s seven judges to rule unanimously that they had become as obstructive to justice as no employment tribunal process at all.
“It’s the biggest victory in a court in British employment history,” a triumphant Dave Prentis, general secretary of Unison, the trade body who led the campaign, said.
“Access to justice is so important, and is why Unison was determined to stand up to the government to get tribunal fees scrapped. Unison was not simply pursuing a legal case but also a moral one.
“Everyone deserves the right to have their case heard, and there should never be a barrier to justice based on ability or willingness to pay arbitrary fees.
“Access to the courts has been a cornerstone of the justice system in England since Magna Carta. Yet the introduction of tribunal fees threatened to undermine this centuries-old right. When tribunal fees were introduced, they tipped the balance in favour of unfair employers and away from vulnerable workers.”
With two of the most prevalent causes for claims being unpaid wages and employment rights, the ruling is of particular significance for the UK’s 4.8 million self-employed workforce – many of whom have had to rely on costly tribunals to achieve clarity over their employment status.
In announcing their introduction in 2013, without significant parliamentary scrutiny, the coalition government and the then Justice Secretary Chris Grayling had hoped to reduce the number of “malicious and weak cases”.
The result, however, saw a 70 per cent reduction in the number of cases brought forward, and Unison said the fees prevented workers with genuine cases accessing justice, rather than reducing the number of “malicious cases”.
Put simply, they were unaffordable. And Unison – who first lost tribunals in the Court of Appeal, before July’s victory – said their campaign had been motivated as much by its moral implications as its legal ones.
The judges eventually ruled that the fees contravened both UK and EU law and ordered the government to refund £32 million to those who had paid to bring their cases to tribunal – a decision greeted with great celebration from those gathered outside the iconic façade of the neo-gothic court building.
“People don’t choose to go to tribunals; they go because they have to,” Prentis continued.
“Therefore, adding in the extra hurdle of fees made the whole process even more challenging for those facing ill treatment by their bosses. Fees were set as high as £1,200 – more than a month’s salary for low-paid employees. It is not hard to see why working people, especially those on low incomes, were deterred by such expense.
“As the Supreme Court pointed out, in reality, it was genuine cases that were affected – the type of claims employment tribunals were put in place to support.
“They ruled that fees should be affordable for all. This result brings to an end the cruel employment tribunal fees regime, and ensures that no one else is ever forced to pay crippling fees just to access basic justice.
“It’s the most significant judicial intervention in the history of British employment and constitutional law, because it overturns legislation explicitly designed to deny working people their rights.”
In the absence of a statutory definition of self-employment, something IPSE called for in its submission to the Taylor Review, there has been long-term and widespread confusion surrounding employment status.
“We were delighted with the Supreme Court’s judgement,” IPSE’s director of policy Simon McVicker added.
“Since their introduction, countless numbers of self-employed people have been denied access to justice because of prohibitive fees. July’s decision brings us closer to ending this iniquity.
“However, there are still concerns for freelancers who have to rely on tribunals to achieve clarity over their employment status – they’re costly, time-consuming and can make going about day-to-day business very challenging.
“A statutory definition of self-employment would end this confusion, and improve working conditions.”
With the way IR35 now operates in the public sector and the widespread confusion surrounding employment status it has caused, the confidence that contractors have access to a fair and affordable hearing cannot be undermined.
“This decision has implications for the government’s whole approach to justice,” Chris Wilford of the Chartered Institute of Arbitrators, told IPSE.
“In terms of IPSE members, this goes right the way from how their dispute is viewed in the first place. Is it a contractual dispute or an employment dispute?
“If they are going to have to go down the route of litigation in the courts, they need to know that they’re not going to be penalised for seeking justice and they do have that access to redress. This decision ensures they have confidence that this option remains open to them.”
The ruling cannot prevent employer exploitation outright. However, it does send a significant message of fairness and progression, and with the uncertainty of Brexit on the horizon, access to justice and clarity is as important now as ever before.
As Lord Reed, one of the seven judges who presided over the case remarked – justice is not an embryonic right but one decreed almost 1,000 years ago.
And now, four years later, justice is served.