R (on the application of UNISON) v Lord Chancellor

R (on the application of UNISON) v Lord Chancellor was a landmark decision by the Supreme Court of the United Kingdom that unanimously declared the Employment tribunal and Employment Appeal Tribunal fees order introduced by the Lord Chancellor in 2013 to be unlawful. The court held that the fees, which had led to a dramatic fall in claims, impeded the constitutional right of access to justice and were discriminatory under both domestic law and European Union law. The ruling resulted in the immediate abolition of the fees regime and a government commitment to reimburse over £32 million to claimants.

Background

In July 2013, the Coalition Government, exercising powers under the Tribunals, Courts and Enforcement Act 2007, introduced a fees regime for claims brought in Employment tribunals and the Employment Appeal Tribunal. The order was made by the Lord Chancellor and Secretary of State for Justice, Chris Grayling. The trade union UNISON, supported by the Equality and Human Rights Commission, brought judicial review proceedings, arguing the fees unlawfully restricted access to justice and were indirectly discriminatory. The High Court of Justice and the Court of Appeal of England and Wales initially dismissed the claims, leading UNISON to appeal to the Supreme Court of the United Kingdom.

Judgment of the Supreme Court

The seven-judge panel, led by Lord Neuberger and Lord Reed, delivered a unanimous judgment. Lord Reed’s leading opinion held that the fees order was unlawful because it effectively prevented access to justice, a right inherent in the rule of law. The court found the drastic reduction in claims—nearly 70%—was not justified by the stated aims of transferring cost and encouraging alternative dispute resolution. Furthermore, the higher fees for type B claims (like discrimination cases) were found to be indirectly discriminatory against women and other protected groups, contrary to the Equality Act 2010 and the EU Equal Treatment Directive. The court quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013.

Significance and impact

The judgment was immediately hailed as a monumental victory for access to justice and trade union advocacy. It reasserted the constitutional principle that courts must be practically accessible to all. The government was forced to immediately cease charging fees and undertake a massive repayment scheme, administered by Her Majesty's Courts and Tribunals Service. The ruling strengthened the role of the Supreme Court of the United Kingdom in scrutinizing the substantive effects of secondary legislation on fundamental rights. It also reinvigorated the use of judicial review as a tool for challenging government policies that create financial barriers to legal redress, influencing subsequent debates on court fees in the Civil Procedure Rules.

Subsequent developments

Following the judgment, the Ministry of Justice announced it would reimburse all fees paid since 2013, a process largely completed by 2019. The decision effectively ended political debate on reintroducing employment tribunal fees, though consultations on other aspects of tribunal reform continued. The case is frequently cited in arguments concerning legal aid cuts and other court fees, including those related to the Immigration and Asylum Chamber. It remains a cornerstone precedent in United Kingdom constitutional law, cited in cases such as R (on the application of Public Law Project) v Lord Chancellor concerning the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

See also

* Judicial review in English law * Rule of law in the United Kingdom * Trade union law in the United Kingdom * Equality Act 2010 * Supreme Court of the United Kingdom cases Category:2017 in British case law Category:United Kingdom administrative case law Category:United Kingdom labour case law Category:Supreme Court of the United Kingdom cases