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The importance of access to justice is loud and clear in Supreme Court tribunal fees judgment

Shubha Banerjee discusses the Supreme Court judgement on Employment Tribunal fees. 

Shubha specialises in trade union and employment law, and advises clients on all aspects of employment law including unlawful discrimination, contractual issues and unfair dismissal. She also advises on some pension related issues.
As many have already commented, the finding that tribunal fees are unlawful is to be welcomed, and Unison’s challenge to  their introduction corrects a poorly thought through decision made four years ago.   The judgment is important, not just because of its conclusions, but also because of the insight it gives us into the obstacles faced by those who believe they have been treated unfairly by their employers and wish to do something about it.  What was also really striking about it was the basic fundamentals that the Supreme Court saw fit to set out in some detail, many of which we as a society clearly need reminding of.  

As the Supreme Court’s decision makes clear, responses to the Government consultation in 2012 suggesting that deterring individual claims would have wider societal impacts were rejected at the time.  The judgment gives this short shrift, explaining why these responses should have been heeded and spending a fair amount of time in the judgment explaining the value of case-law for the functioning of society as a whole.  It focuses on the impact of fees on access to justice but also refers to the lack of any basis or explanation for fees having been introduced at the levels that they were, and the fact that there was no connection between the fee paid and the amount recoverable, despite the fact that in some tribunal claims, there is no expectation of any monetary  recovery whatsoever, and in many others, recovery will be of a very low amount .  Given that the introduction of fees has led to a reduction in claims pursued of between 66 to 70%, the judgment is plainly correct in holding that access to justice has been impeded.   

The judgment also paints a picture of how hard it is for a potential Claimant in today’s regime quite apart from payment of fees, referring to the removal of the very helpful questionnaire procedure in discrimination claims (a procedure which used to allow potential Claimants to ask an employer why there had been a difference in treatment before deciding whether or not to pursue a claim), the non availability of legal aid for employment disputes, and the low levels of recovery of compensation by successful Claimants (according to a study by DBIS in November 2013, only 53% of successful Claimants received full or part payment of their award without having to take enforcement action).   

There seems to be a general trend at the moment, perhaps brought on or exacerbated by attempts at the beginning of last year by certain sections of the media to paint striking junior doctors as greedy and selfish, or to disparage the characters and personal circumstances of judges who make decisions with which these media moguls disagree, towards despising, resenting, or at the very least, rubbishing people who are simply doing their jobs. The threats received by the doctors, nurses and lawyers in the tragic Charlie Gard case being a recent example.  Obviously, where individuals do not act appropriately in their work, this needs to be addressed, but the majority of people do.  This judgment helps to set things straight, at least in terms of the role and purpose of the courts and their judges, by reminding its readers of the importance of the rule of law, democratic process and separation of powers to us all as a society, and how if even one of these elements breaks down, the whole of society is worse off.  By setting out how these fundamental principles were rooted in that most English of declarations, the Magna Carta, and pointedly remarking that the right of access to justice is not a recent import from Europe but has been deeply embedded in English constitutional law for hundreds of years, the judgment also heads off any criticism of the nationalist (and in many cases racist) anti –European ilk that we have been hearing so much of in the last 18 months or so.    

All in all, a brilliant decision, both in terms of its effects on workers needing access to justice, but also in terms of fighting back against the slow creep of demonization of people for doing jobs on which we all depend.  Well done to the Unison legal team and in particular Shantha David for all of their work. 

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