Challenging Employment Tribunal Fees

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On July 27, 2017, the highly celebrated legal decision considered by the UK Supreme Court in response to R (ex parte Unison) v. Lord Chancellor (2017) UKSC 51 resulted into a possible breakthrough. During the court battles, liberalising the rule of law and strengthening the constitutional right allowed the masses to access justice significantly. The Supreme Court rule engineered the abolition of the Employment Tribunal Fees. In the process, the Fee Order whose purpose was to introduce the fee would get declared unlawful under both the European Union law and domestic law. It was argued that the fee’s effect was not only discriminatory, but it also managed to minimise access to justice. Employment Tribunal fees were branded “unlawful ab initio.” When translated from Latin, “unlawful ab initio” would change to the phrase - “unlawful from the outset.”  Previously, petitions associated with this case failed (Nicole 254).

Key objectives: The ruling Supreme Court concluded that the Fees Order could not meet essential goals from the time when it was introduced. Some of the unmet key objectives include;

i). Transferring the costs associated with tribunal fees from the taxpayers. In this case, those who caused the use of the Tribunal or the users would get held accountable. This thought focused on recording about a third of the service’s costs. However, costs marked at 20 per cent below the target were recorded as fees.

ii). Reducing unmeritorious claims. This effect caused the reduction of successful claims. Meanwhile, unsuccessful claims appreciated.

iii). Encouragement of early legal settlement. Employers failed to honour early settlements because they had to wait for an employee to pay the hearing fee or afford the issuance of specific claims. An employer would only react after an employee’s intervention.


The judgment subject to R (ex parte Unison) v. Lord Chancellor (2017) UKSC 51 focused on erasing the reasoning which pioneered the introduction of the Employment Fees. It was clear that the Tribunal fees had minimised the number of claims.  At the same time, the tabled evidence hinted that a reduction of about 66 to 70 per cent of claims would get recorded. In the event, a fall in claims had to become so sustained, so substantial, and so sharp that access to justice failed. Such adverse legal influences heightened until it became apparent that a significant number of people could not table their claims because of unaffordable fees.

Part II

Through Unison, unity among lawyers is naturally inevitable. The case associated with Unison has significance as it may get branded unanimous and outstanding to bureaucrats, bean-counters, and politicians who typically influence the various legal aspects which determine how the rule of law should get enforced. Passionate quotations made by Lord Reed compelled the Supreme Court to rule on his side. Therefore, from R (ex parte Unison) v. Lord Chancellor (2017) UKSC 51, it becomes clear that constitutional rights among the users of law have significance. However, does the judiciary have any limitation which minimises its chances of performing some specified sets of roles?       

            According to this case’s facts, as analysed by UK’s Supreme Court, it was made clear that the Fees Order minimised the effectiveness of justice administration. In the event of applying the law, the ability to access the essentials of justice leads to the realisation of the desired rule of law. Most constitutional systems have developed the tendency of upholding the just specifications as determined by their legal structures. However, in the case of incompetent judicial structures, incompatible orders would still act as a point of reference among the legislative administrators.

            Unlawful administrative orders would then render administrative orders incompatible. In the process, the roles subject to the judiciary would have limits.

The purpose of any constitution is to point out legislative breach through specific authorities, persons, or agencies. However, the constitutional order instituted in the United Kingdom has no power like other country’s constitutions. In particular, the sovereignty subject to the UK Parliament enables members to carry out wishes as they like.

            We do not have time to inquire whether Lord Chancellor received permission from the UK Parliament to create a liberal fees regime whose effects impeded the access to justice. In the first place, it is essential to question if the UK Parliament had considerable powers to influence the Fees Order. At this point, the processes associated with the statutory construction seem crucial. In this case, the principle of legality matters because it had a role to play when concrete solutions had to get considered during the process of enforcing a favourable rule of law.

Works Cited

Busby, Nicole. "Challenging Employment Tribunal Fees: R (Unison) v Lord Chancellor and      Another (No 2)."Edinburgh Law Review 19.2 (2015): 254-259 Justice – Tom Sargant Memorial Lecture 2013. October 15, 2015.    Accessed December 20, 2018. R (ex parte Unison) v. Lord Chancellor (2017) UKSC 51. July 26, 2017. Accessed         December 20, 2018.

December 12, 2023


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