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Written Statement - The Supreme Court Ruling: "R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51"

Carl Sargeant, Cabinet Secretary for Communities and Children

In a judgment dated 26 July, the Supreme Court found in favour of the trade union, Unison, who were supported by the Equality and Human Rights Commission and the Independent Workers Union of Great Britain. In upholding Unison’s challenge to the introduction of Employment Tribunal fees by the Ministry of Justice, the Supreme Court’s judgment brought a successful conclusion to long-running action through the courts which began in 2013 and which shows the vital role that unions play in our modern society, ensuring that ordinary workers are not exploited by illegal practices.

Since 2012, the Ministry of Justice has brought forward many reforms which have fundamentally changed our justice system. Measures have been implemented despite respondents identifying many adverse impacts through consultation processes.

Substantial reductions in the availability of legal aid, and the introduction of some court fees which may exceed the value of a claim, have made access to justice prohibitively expensive. Justice has increasingly become affordable only to those with significant levels of net disposable income.

In my response to the Ministry of Justice’s review of Employment Tribunal fees earlier this year, I highlighted how the net effect of the policy of increasing Employment Tribunal fees was to deny justice to thousands of employees. I expressed concern that the proposals would create a further imbalance in the relationship between employer and employee, given that employers can usually afford full legal representation in Tribunals, whereas employees cannot.

I identified that the UK Government’s own evidence indicated the deterrent effect of fees on applicants to the Employment Tribunal and that many claims were non-financial in nature. The imposition of fees would make pursuit of remedies for breaches of employment law financially unviable for those on low incomes and so prevent the rule of law.

I indicated that the employment tribunal fee now exceeds one month’s net take home pay for people employed at National Living Wage levels and that no evidence had been presented to demonstrate whether those with earnings at this level have sufficient financial resources to afford such fees, particularly once other essential costs are factored in, such as housing, transport, food and clothing. I suggested that similar consideration could usefully be applied to other reforms of fees as well as to legal aid, to reduce the risk of changes to the justice system delivering different standards of justice depending on an individual’s financial resources.

In its judgment, the Supreme Court carefully explained the principles underlying why the Employment Tribunal fees order brought forward by the Ministry of Justice was unlawful under both domestic and European Union law.

Following the release of the Supreme Court’s judgment in this case, the Ministry of Justice confirmed that it would take immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid these fees. The Ministry of Justice also undertook to further consider the detail of the judgment. This will be essential. The judgment may have far-reaching implications beyond Employment Tribunal fees.

This statement is being issued during recess in order to keep members informed. Should members wish me to make a further statement or to answer questions on this when the Assembly returns I would be happy to do so.