Employment tribunals: the impact of UNISON

02 May 2018

On 26 July 2017, the UK Supreme Court handed down a judgment in the case of R (UNISON) V Lord Chancellor [2017] UKSC 51. In 33 years of practising as a specialist employment lawyer, of which the last 16 I have also sat as a fee paid Employment Judge, this is the most significant case that has been decided in that time. Why?

Certainly, the unanimous judgment of the Supreme Court in allowing UNISON’s judicial review proceedings on the legality of charging fees in the employment tribunal system was of itself a significant decision. The consequences of the introduction of fees, and the significant changes to the employment tribunal system as a result of introducing them, are far more difficult to reverse.

Until the enactment of the Employment Tribunals and Employment Appeals Tribunals’ Fees Order 2013 SI 2013/1893 claimants had always been able to bring proceedings in an employment tribunal and appeal to the Employment Appeal Tribunal (EAT) without needing to pay a fee.

The Government’s primary stated aim for introducing fees was to transfer some of the burden of running the tribunal system from general taxpayers to users of the system. It was also felt by some that it would deter unmeritorious or vexatious claims.

Essentially the grounds of the UNISON appeal were that the order interfered unjustifiably with the right of access to justice, under common law and EU law. Further, that the fees order frustrated the operation of parliamentary legislation granting employment rights and discrimination protection against women and other protected groups.

The Supreme Court unanimously allowed the appeal largely on the basis that it restricted access to justice under domestic law. The fees order made it practicably unaffordable for people to exercise rights conferred on them by parliament.

It is well known that after fees, applications to the employment tribunal fell by, in some regions, up to 80%. Consequently, fee paid (part time) Employment Judges who had hitherto back filled much of the judging required to deal with the volume of cases were essentially no longer required. Sitting days for those judges dwindled to virtually nothing. Many of them decided to apply to sit in other jurisdictions or went and did something else. Salaried ( full time) Employment Judges continued to retire at the usual rate and the shrinking of administrative and support staff was hugely significant.

What has happened since July 2017?

The latest statistics show that claims have increased by up to 100%. They are still not quite back where they were pre-fees but they continue to climb and commentators believe strongly that there is every chance that they will return to, or even exceed pre-fee levels. That leaves the employment tribunal system with severe difficulties in that many part time Employment Judges are no longer available to sit. The number of full time judges is far less than it was and there has been a drastic reduction of administrative and support staff in the management of the system.

Anyone involved in employment litigation will now be experiencing the type of listing issues with which we were all familiar pre-2014. Two and three day cases in some of the London regions are now being listed a year in advance.

That is the challenge currently facing the Government. There are noises being made about significant recruitment drives for both salaried and fee paid judges. Only if those recruitment drives go ahead will we see the employment tribunals being fully and properly resourced once again.

What of the future?

The Supreme Court decision in UNISON did leave the door slightly ajar for the Government to re-introduce a fees regime. They would have to think very carefully about any new fee regime in order to avoid any further arguments as to access to justice. They may be able to do that. However, there is no immediate indication that they propose to do so.

In the immediate future I expect the number of employment tribunal applications to continue to rise and the main focus of those with responsibility for the employment tribunals must concentrate on fully resourcing them to manage that increase.

This article is taken from our summer 2018 edition of HR Matters. For further information regarding this recent decision please contact Kevin Palmer or a member of our employment team. Law covered as at May 2018.