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The Supreme Court: The (access to) Justice league

It is not often as lawyers that we get to write about changes that take immediate effect.  Indeed legal blogs are always littered with language like ‘time will tell’, ‘it remains to be seen’, and ‘it may or may not’, but yesterday the Supreme Court made its presence and authority known across the Country. The Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 (‘the Order’) prevents access to justice and is unlawful.

What does this mean? It means that as of yesterday when the judgment was handed down the Order has been quashed and fees ceased to be payable for claims in the employment tribunal and employment appeals tribunal. It also means that all fees paid in the past must be reimbursed and this sum alone will not be insignificant.

The next question of course has to be why the Supreme Court Justices reached this decision, which could be the most important judgment in employment law for decades.

Within the 41 page judgment the Court considered the vast amount of evidence and statistical data dealing with the effect of the Order including costs, claim numbers, fees, awards and settlement. The evidence is damning and shows that Unison, who brought the claim, had good reason to be concerned about the Order.  Lord Reed gave the principal judgment and noted that the fees had not reduced unmeritorious claims, they had not improved the number of cases settled through ACAS and they had had a much less significant contribution to the tribunal costs that expected. But this isn’t just another case about cost saving and financing through fees, it is much greater than that: this case was, in essence, about our constitutional right of access to the courts.

Lord Reed stated that if access to the courts were denied, the laws in country would become meaningless and so too, the work that Parliament put in to them. He stated: ‘This is why the courts do not provide a public service like any other.’ Lord Reed went on to conclude that the Order did indeed prevent access to justice and he did not believe that the fees were justified as a necessary intrusion on the basic right of access to the Court. 

The Supreme Court’s ruling in this case serves to reinforce the fundamental importance of access to justice… employers beware, the embargo on claims may well be over.

Megan James
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