LAW1020 Learning the Law: Case Summary of R (UNISON) v Lord Chancellor

This case study provides a detailed summary of R (UNISON) v Lord Chancellor [2017] UKSC 51, a landmark UK Supreme Court case concerning the legality of fees imposed on claimants bringing proceedings before the Employment Tribunal and Employment Appeal Tribunal. The appellant, UNISON, challenged the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013, arguing that the fees hindered access to justice and were discriminatory, particularly against women and other protected groups. The Supreme Court ultimately allowed the appeal, ruling that the Fees Order was unlawful under both EU and domestic law because it impeded access to justice. The court highlighted the significant decline in tribunal claims following the introduction of the fees and rejected the government's justifications for the fees, including shifting the cost burden and reducing vexatious claims. The decision underscored the importance of the rule of law, the right to a decent standard of living, and the need for effective remedies, marking a significant victory for workers' rights.

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R (UNISON) v Lord Chancellor1
Citation
[2017] UKSC 51
Background
The proceeding has been initiated with the imposition of the Employment Tribunals and
Employment Appeal Tribunal Fees Order 2013, SI 2013/1893, by the government, which has
made the workers to make payment of a fees for the purpose of bringing a proceeding before
the Employment Tribunal or Employment Appeal Tribunal. Prior to the imposition of this
order enacted by the Government, the claimants bringing a proceeding in the Employment
Tribunal or Employment Appeal Tribunal were not liable to make payment of any fees for
the purpose of bringing that proceeding. The fees that has been imposed upon the claimants
desiring to institute a proceeding before the Employment Tribunal or Employment Appeal
Tribunal by the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013,
SI 2013/1893 are for four purposes2. Firstly, the order imposed a fees on the claimant who to
is willing to issue a form with respect to the claim before the Employment Tribunal.
Secondly, it makes imposition of fees upon the claimant who prefers an appeal to the
Employment Appeal Tribunal. Thirdly, it also imposes a fees on a person for a hearing before
a tribunal with respect to a claim. Fourthly, it also imposes a fees for the purpose of making
other forms of application to these tribunals. This order has introduced two kinds of fees.
Type A claims, which requires less time to be settled has been imposed with an application
fees of £390. Type B claims, which includes unfair dismissal, discrimination claims and
equal pay claims are imposed with a fees of £1,200. This differentiation in the payment of
fees has been implemented by the Government through its fees order for the complexity and
1 R (UNISON) v Lord Chancellor [2017] UKSC 51
2 Bogg, Alan. "The Common Law Constitution at Work: R (on the application of UNISON) v Lord Chancellor."
The Modern Law Review 81.3 (2018): 509-526.

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longer requirements of the Type B claims. This has made the fees differentiation based upon
the complexity of the claim proceedings and not the relief amount that has been sought. The
appellant of the case was the trade union UNISON, who were accompanied by the Equality
and Human Rights Commission and the Independent Workers Union of Great Britain, the
Independent Workers Union of Great Britain and a group of workers. This proceeding has
been instituted challenging the imposition of such a fees for bringing a proceeding before the
Employment Tribunal or Employment Appeal Tribunal. This imposition by the Government
of such fees upon the claimants has been challenged by the appellants to be discriminatory
and it hinders the access towards justice3.
Decision
The appeal challenging the validity of such an order, which has the effect of imposition of
fees has been allowed by the Supreme Court. The court has ordered the collection of such a
fee to be stopped with immediate effect. It also ordered the Government to make the
reimbursement with respect to the fees that has already been collected since the inception of
the order. Owing to such an order a quote of £30-35 million approximately has been assessed
from the process of recovery4.
Rule of Law
The rule of law is considered to be one of the basic principles of the common law. It
renders all the procedures and codes of law to be equally applicable to the members of the
society. This rule implies all the persons to be the subject of the law and these people also
include legislators, judges and officers of law enforcement. All of them will be treated as a
subject of the law along with other people who are subjected to the same law. This provides a
restriction on the legislators, judges and officers of law enforcement to act arbitrarily in their
3 Ford, Michael. "Employment Tribunal Fees and the Rule of Law: R (Unison) v Lord Chancellor in the
Supreme Court." Industrial Law Journal 47.1 (2018): 1-45.
4 R (UNISON) v Lord Chancellor [2017] UKSC 51

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power of imposition and implementation of the laws. They will be treated under the law and
the legal procedure in the same way as any other subjects of the society. The rule of law
treats every citizen as a subject of the law and the access to law will be equally provided to
every citizen irrespective of their designation5.
Discussion
In this case, the legality of the Employment Tribunals and Employment Appeal Tribunal
Fees Order 2013, SI 2013/1893 has been challenged by the trade union UNISON along with
the Equality and Human Rights Commission, the Independent Workers Union of Great
Britain and a group of workers. The argument that has been provided by the appellants
rendered the imposition of fees to be unjustified. This order has been challenged to be a
hindrance to the accessing of justice. This denial of access to justice has been conferred by
both the European Union (EU) Laws and the common law. This order also deprived the
workers to the rights under the statutory employment rights and the rights with respect to
discrimination towards a protected group or the women6.
However, the arguments presented by the Government in this regard has considered the
order for the imposition of such a fees to be lawful and contended the appeal to be vexatious.
The grounds upon which this contention of the Government has been based were that no
conclusive prove can be presented that will established the denial of the access to justice has
been caused to a claimant who has an inability to pay such a fees. The Government, in that
context, contended that the poor claimants who does not have the ability to make payments
towards that fees will be entitled to a full waiver of that fees. However, the Government also
contended that other claimants has enough resources to make payment towards such fees.
This contention has been rejected by the court. In this furtherance the court contended that the
5 Raz, Joseph. "The rule of law and its virtue." The Rule of Law and the Separation of Powers. Routledge, 2017.
77-94.
6 Rose, Emily, and Nicole Busby. "Power Relations in Employment Disputes." Journal of Law and Society 44.4
(2017): 674-701.

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presence of a conclusive proof is not a mandate to assess the denial of accessing justice. The
existence of a risk of such a denial to justice is an adequate ground to reject such a
contention. The court, in this regard, had made reference to the substantial, sustained and
sharp decline in the number of proceedings for such claims that has been brought before the
tribunal. The court has stated that the claimants who would have generally brought a
proceeding to these tribunals would refrain from the same owing to the fees being
unaffordable and burdensome to the claimants. Moreover, the contention of the Government
regarding the full waiver of the fees has been rejected by the court. In this context, the court
has considered the waiver to be inadequate as it would be a discretionary power, which might
probably not so systematic in assessing the inability of a person to pay the fees. The objective
of the court in rendering the fees to be a hindrance towards the access to justice was not only
because of the fees being unaffordable to the claimants, it also rendered the fees to be to be a
hindrance to justice as the claimant may feel the instituting of the proceeding to pointless and
illogical when accompanied by the payment of such a fees. The court has also made the
contention, in this context, that the fees cannot be regarded as affordable on the grounds that
the person might be required to cut short his standard of living and sacrifice his expenditures
to make the payments with respect to the fees7.
The court while rejecting the claim contended that even if the hindrance in the access of
the justice can be defeated, it will not be lawful to impose such a hindrance. However, such a
hindrance that can be defeated will be permitted only when the imposition of the same has
been made to satisfy a legal objective. The justification that has been provided by the
Government, in this regard, would three fold. Firstly, the Government has contended that the
fees, which has been imposed would shift the expenditure burden of the taxpayers to the users
of this system. Secondly, this will decline the vexatious claims that are brought for the sole
7 Nag, S. "Without access to justice, the law is a dead letter." Solicitors Journal 161.30 (2017): 30-31.

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purpose of making harassment to a person. Thirdly, this would encourage the settlements to
be made earlier. However, each of the contentions that has been made by the Government has
been rejected by the court. In rejecting the contentions of the Government, the court has made
reference to the lack of evidence to prove the claims made by the Government8.
The court in rejecting the claims of the Government to justify the imposition of such a fees
drew references to the constitutional rights in the domestic level that ensures an access to the
court, which is free from any impediments. It also made references to the norm with respect
to judicial protection, which is effective, prevailing in the regional level. This right has been
provided by the European Convention on Human Rights and backed by the Charter of
Fundamental Rights of the European Union. Finally, the court has rendered the Fees Order
that has been imposed by the Government to be unlawful both under the European Union
Law and the domestic law and has the consequence to hinder the accessibility of justice. This
has made the court to disallow the order to be implemented9.
The court has also considered the order to impose fees to be discriminatory. It can be
regarded as discriminatory by virtue of the Equality Act 2010 under section 19. This is
because this claim has put a tremendous burden upon the women and other group of
protected class and caused a detriment to their situation as these sections of the society are
more prone to make such claims than any other section of the society10.
Conclusion
The decision in this case has marked a landmark in the access of the workers to justice. It
has been regarded as a landmark judgement, which was highly popular among the workers
and has also received a considerable amount of public and media recognition. This judgement
8 Ekins, Richard Gee. "Putting judicial power in its place." U. Queensland LJ 36 (2017): 375.
9 Elliott, Mark. "THE RULE OF LAW AND ACCESS TO JUSTICE: SOME HOME TRUTHS." The
Cambridge Law Journal 77.1 (2018): 5-8.
10 Boyle, Katie. "The Future of Economic, Social and Cultural Rights in Scotland: Prospects for Meaningful
Enforcement (Forthcoming)." Edinburgh Law Review (2018).

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has addressed several issues, which are pivotal in the course of ensuring the human rights.
These issues include securing the rights relating to the workers, significance protection of the
rule of law, gender equality, right to decent standard of living and accessibility of the
effective remedies. This judgement recognises the strained relationship existing between the
employer and the workers. It strongly recommends the removal of any hindrance that might
exist in the way of the access of the workers to justice. The court has made it clear through
this judgement that to ensure the effectiveness of a right, the enforcement of the same in
practice is required to be ensured11.
It can further be contended that the right with respect to the acceptable standard of living
is the basic right that has been conferred upon by the International Covenant of Economic,
Social and Cultural Rights. This judgement has also eradicated the chances of the employees
to be delivered with unjustified decisions in which the determination of the standard of living
has posed a challenge to the access to justice. This judgement has also condemned the
discrimination of the workers towards the access to justice on the basis of the standard of
living. This judgment has ensured the protection of the right of the workers with respect to
the access to justice. The availability of the effective remedies of judicial nature is essential
for ensuring the restoration of human rights. The access to justice can be considered to be the
most basic form of rights ensured under the human rights law. This judgement has also
inflicted an escalation of the issue relating to the discrimination with respect to women in
indirect form and other protected classes and ensured the restriction of the same.
11 Elliott, Mark. "Judicial power and the United Kingdom's changing constitution." U. Queensland LJ 36 (2017):
273.

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References
Bogg, Alan. "The Common Law Constitution at Work: R (on the application of UNISON) v
Lord Chancellor." The Modern Law Review 81.3 (2018): 509-526.
Boyle, Katie. "The Future of Economic, Social and Cultural Rights in Scotland: Prospects for
Meaningful Enforcement (Forthcoming)." Edinburgh Law Review (2018).
Ekins, Richard Gee. "Putting judicial power in its place." U. Queensland LJ 36 (2017): 375.
Elliott, Mark. "Judicial power and the United Kingdom's changing constitution." U.
Queensland LJ 36 (2017): 273.
Elliott, Mark. "THE RULE OF LAW AND ACCESS TO JUSTICE: SOME HOME
TRUTHS." The Cambridge Law Journal 77.1 (2018): 5-8.
Ford, Michael. "Employment Tribunal Fees and the Rule of Law: R (Unison) v Lord
Chancellor in the Supreme Court." Industrial Law Journal 47.1 (2018): 1-45.
Nag, S. "Without access to justice, the law is a dead letter." Solicitors Journal 161.30 (2017):
30-31.
R (UNISON) v Lord Chancellor [2017] UKSC 51
Raz, Joseph. "The rule of law and its virtue." The Rule of Law and the Separation of Powers.
Routledge, 2017. 77-94.
Rose, Emily, and Nicole Busby. "Power Relations in Employment Disputes." Journal of Law
and Society 44.4 (2017): 674-701.