THE NEW WORKER

The Weekly paper of the New Communist Party of Britain
Week commencing 11th August 2017


UNISON’s tribunal fees triumph defends access to law

THE SUPREME Court ruling in the case brought by the public sector union UNISON that charging workers fees for access to employment tribunals will have far reaching implications for many other issues and is based on a principle that dates back to the Magna Carta, according to a report issued last week by the lawyer who represented the Equality and Human Rights Commission (EHRC).

Michael Ford QC, Professor of Law at the University of Bristol, said in his report, which was published by the Institute of Employment Rights (IER) (a think tank for the labour movement), that the Supreme Court judgement was “the biggest single victory in the history of employment law”.

The principle behind the judgement does not come from the European Court of Human Rights nor from any European Union legislation — so it will not be affected by Brexit. It goes back to ancient common law that lack of access to a court or tribunal for redress against breaches of employment law completely undermines that law.

The laws protecting workers against unfair discrimination based on race or gender or any other issue would become worthless pieces of paper if workers had no way pursuing breaches in tribunals. Employers who broke the laws would face no penalty and the laws would be simply ignored.

The Supreme Court ruled unlawful the fees, which were introduced four years ago, and effectively rendered employment rights illusory in practice.

But the ruling has far wider implications for the protection of legal rights beyond the workplace and it will be cited in a wide range of cases involving domestic and international constitutional law in future.

It could have an impact on the cuts to legal aid.

It was not an easy case for the UNISON lawyers, supported by the EHRC, to bring. They faced defeats in front of eminent judges in two Divisional Courts and in the Court of Appeal.

But this made victory in the Supreme Court all the sweeter. With immediate effect from the day of the judgement, fees ceased to be payable in the employment tribunal.

For the Government, which faces a bill of over £30 million in honouring the undertaking it gave to the courts in the event of its defeat, the case was a disaster.

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The Department for Business, Innovation and Skills (BIS) announced the introduction of fees for tribunal claimants in January 2011, in a document Resolving Workplace Disputes: A Consultation. The coalition government claimed that it was intended to transfer some of the costs from taxpayers to users; to incentivise early settlements; and to disincentivise unreasonable behaviour, such as pursuing weak or vexatious claims.

It was all about money and the implications for upholding social rights were ignored.

“The Government’s Impact Assessment predicted only a small drop in claims as a result of fees, and assumed no social costs from fewer tribunal claims being brought: tribunals, on this model, serve no wider function than a supermarket serving its customers,” Michael Ford wrote.

“When the Employment Tribunals and EAT [Employment Appeal Tribunal] Fees Order came into effect in July 2013, UNISON was caught on the horns of a dilemma. Any delay in issuing a claim for judicial review is often fatal; yet at that stage there was little evidence of the effect of fees.

“UNISON was told by the first Divisional Court that its claim was premature. Even after statistical evidence emerged showing a dramatic drop in the number of claims, a second Divisional Court still dismissed the claim, saying such evidence was not sufficient to show workers were unable, as opposed to unwilling, to bring claims.”

But the UNISON lawyers persevered and in time the big drop in the number of tribunal claims added some weight to their case.

Detailed research for the Advisory, Conciliation and Arbitration Service (ACAS) based on a representative sample of actual claimants found that fees were the most common reason for those who did not settle through ACAS deciding not to submit a claim.

The final piece in the evidential jigsaw, produced not long before the Supreme Court hearing, was the Government’s long-awaited Review into tribunal fees. Its claim that the introduction of fees “has broadly met its objectives” was contradicted by the evidence it relied on.

There was evidence that employers were not engaging in pre-tribunal conciliation because they knew that the workers would not be able to afford to take the case to tribunal. By the time the Supreme Court sat the evidence had built up enough. The Court strongly opposed “the marketization of legal rights”.