Authored By: Leshimita a/p Kamalezveran
Brickfields Asia College (BAC), Malaysia
1. Case name and citation
R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51
2. Courts and Judges
The Supreme Court of the United Kingdom (UKSC)
Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes
3. Parties
Appellant: Dinah Rose QC, Karon Monaghan QC, Iain Steele, Matthew Purchase (UNISON – representing the interest of workers)
Respondent: David Barr QC, Victoria Wakefield (the Lord Chancellor)
4. Material Facts
4.1 The statutory basis of the Fees Order
This issue regarding employment tribunal fees arose when the trade union, UNISON appealed against the Lord Chancellor regarding the fees that has been imposed by the Lord Chancellor in the respect of proceedings in employment tribunals (‘ETs’) and the employment appeal tribunal (‘EAT’) that has become unlawful due to the access to justice being affected. As a matter of fact, the challenge was imposed at Fees Order on which was then introduced as delegated legislation under Section 42(1) of the Tribunal, Courts and Enforcement Act 2007 which prescribed that Lord Chancellor may by order is able to prescribe fees payable in respect of any matter that were dealt by the First – tier and Upper Tribunals that includes the ET and EAT.
The structure of the Fees Order was divided to issue fee and hearing fee depending on a single claimant or by a group as well as whether it is classified as ‘type A’ or ‘type B’ claims. Type A claims usually revolve around simpler issues which require little or almost no prehearing work and a little amount of time as well whereas type B claims revolve regarding more complex issues by factually and legally which involves more prehearings, longer final hearings and more judicial case management. For a single claimant under type A claim could total up to £390 whereas for Type B claim, it would total up to £1200. Following that, the payable fee by groups varies from the smallest groups ranging from two to ten claimants, fees would amount to £780 for type A claims and £2,400 for type B claims whereas for largest groups of over 200 claimants, the fees total up to £2,340 for type A claims and £7,200 for type B claims.
4.2 Remission
Consequently, remission of fees was given as part of the provision for Article 17 of the Fees Order where ‘the disposable capital test’ must be satisfied in order for the claimants and appellants to be entitled to remission. Adding to that matter, Lord Reed also was able to construct from the establishment of the Fees Order that there is no sufficient or appropriate explanation regarding how the figures relating remission or partial remission were concluded on the premise concerning disposable income test and gross monthly income test.
4.3 Effect of non – payment of fees
Additionally, if a hearing fee or any other relevant fee along with an issue fee or a remission application had not been paid, the claim would automatically be rejected under rules of procedure of the ET. Similarly, it is also applied under EAT where the Appellant had not paid a fee or presented a remission application, an appeal would be struck out.
The contemporary view on ETs is that it was supposed to be an inexpensive forum as per Lord Reed’s view. As per common knowledge, usually when a party has acted vexatiously, abusively, disruptively or otherwise unreasonably while bringing or conducting the proceedings, only then a party is required to pay to ET proceedings.
4.4 Effect of the Fees Order
Hence, following the effect of the implementation of the Fees Order, the number of claims brought in ETs has significantly been reduced specifically in value claims especially under type A claims. The amount was concluded from two sources which are statistics published by the Ministry of Justice under the title of Tribunals and Gender Recognition Certificate Statistics Quarterly and consultation paper published by the Ministry of Justice which the Lord Chancellor referred to as ‘the Review Report’. One of the most mentioned reasons to not bring in such low value claims were the fact the fees implicitly acted as a deterrent to submit the ET claim. A simple question arose under Lord Reed’s perspective as to whether sacrificing ordinary and reasonable expenditure as suggested by the Lord Chancellor should practically be the price to access one’s rights.
As per the Review Report, the main aim to the introduction of the Fee was to transfer part of the cost burden of the tribunals from the taxpayers to actual users of the services such as the ones bringing forward the claims.
Furthermore, it was also established the fact that most successful ET claims usually resulted in modest financial awards, and some did not even involve monetary awards and instead, it was about a written statement of particulars of employment.
5. Question of law / issues
In regard to the case, the question of law arises on whether the prescribed fees interfere unjustifiably with the right to access to justice under common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups. It was also debated on the issue that will the Fees Order be ultra vires if there is a real risk that a person will effectively be prevented from having access to justice.
6. Decision
The Supreme Court unanimously allowed the appeal by the trade union, UNISON and hence, the government had revoked the Fees Order as it was quashed by the Supreme Court. It was subsequently found that the Fees Order conflicted with EU law in terms of imposing limitations on the exercise of EU rights which are unlawful and void.
7. Detailed reason for the decision
Two principles were involved in concluding that the Fees Order was unlawful and void. One of it was the constitutional right of access to justice that being said, the courts citing the case of R v Secretary of State for the Home Dept, ex p Saleem [2000] 4 All ER 814, [2001] 1 WLR 443 and the rule that ‘specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act citing R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1996] 4 All ER 385 at 399.
7.1 The constitutional right of access to the courts
It was definitively stated by Lord Reed that the constitutional right of access to the courts is inherent in the rule of law. The idea of the society being governed by the law is the very concept of the rule of law where the Parliament exists to create law and courts exist to ensure to enforce the law with the establishment of common law by courts themselves. Somehow, that role also subsequently includes the fact that the courts ensure the executive branch of the government performs its due duties and functions in accordance with the law. However, it’s impossible for courts to perform their role if the people in principle are deterred from accessing the courts.
Apart from that, the Lord Chancellor also mentioned in brief that the claims that have been successful do not benefit the public, it would be just for private consumption anyways. Lord Reed firmly opposed the statement as such saying that when a case is heard and successfully claimed, it sets precedents which produces a flow of case laws. Lord Reed has cited the case of Donoghue v Stevenson [1932] AC 562 at 69 which established that manufacturers too can be liable under duty of care for the health and safety of the consumers under the law of tort. Another cited case was North v Dumfries and Galloway Council [2013] UKSC 45 at 69 which further exemplifies onto the fact that it is not always a designated desire that all claims must be settled.
When Parliament passes law on establishing employment rights, it merely does not grant benefits to individual employees but also in the public interest that those rights should be given effect. Hence, the burden of those bringing forth the claims shouldn’t be charged highly if it benefitted the public. Regarding the usage of negotiation or mediation, it can only work fairly if both parties have equal bargaining power which in the case of employers and employees, it’s usually not.
In Attorney General v Times Newspapers Ltd [1973] 3 All ER 54 at 76, the judicial recognition of the constitutional right of unimpeded access to the courts can only decreased by clear statutory enactment, which is the primary legislation and hence, cannot be done in delegated legislation. Likewise in Chester v Bateson [1920] 1 KB 829 at 76, without the intervention or consent of a minister, it is prohibited for delegated legislation to bring in certain legal proceedings.
Lord Reed also repeatedly emphasised that the delegated legislation under one Act of Parliament cannot contradict another Act of Parliament. It is enabled that the express words in an Act only can take away that right and cited the cases by House of Lords which are R & W Paul Ltd v Wheat Commission [1936] 2 All ER 1243 at 76, and in Pyx Granite Co Ltd v Ministry of Housing and Local Govt [1959] 3 All ER 1 at 76. Lord Reed also went on to cite that Raymond v Honey [1982] 1 All ER 756 at 78, R v Secretary of State for the Home Dept, ex p Anderson [1984] QB 778 at 78 exemplifies that if executive causes any hindrance or impediment, it requires an absolute clear authorisation by Parliament itself.
A statutory power authorising the right of access to the courts could also impose the fact that it is reasonably necessary for such a degree of intrusion in order to fulfil the main objective of the provision while the cases cited were R v Secretary of State for the Home Dept, ex p Leech [1993] 4 All ER 539 at 80 , R v Secretary of State for the Home Dept, ex p Simms [1999] 3 All ER 400 at 81 and R (on the application of Daly) v Secretary of State for the Home Dept [2001] 3 All ER 433 at 82 which was decided after the HRA 1998 that articulated the concept of proportionality into UK law. Lord Reed also cited R v Lord Chancellor, ex p Witham [1997] 2 All ER 779 at 83 which laid the basis of the decision of this case to consider whether the court fees had an indirect effect of depriving a citizen to the access to courts and contemplating on the standing regarding the wide discretion imposed on the Lord Chancellor by the idea of not permitting him to exercise the power in such a way. Another cited case by Lord Reed was R (Hillingdon London Borough Council) v Lord Chancellor [2008] EWHC 2683 at 85.
It was held by Lord Reed that the Lord Chancellor did not have the discretion of power to lawfully impose such fees just so to prevent insignificant claims and intent to effectively use the court resources. From using the authorities, Lord Reed held that there was high possible risk that the Fees Order will be ultra vires if a citizen is prevented to having access to justice as due to s.42 of the 2007 Act which did not expressly or contained any words authorising the prevention of access to relevant tribunals.
When the question arose that did the Fees Order effectively prevent access to justice, it was considered to be true and hence in order to be lawful, it should be set at a level where everyone is able to afford while taking account of the availability of full or partial remission into the context. As the evidence was presented at the court, Lord Reed was able to draw up that the requirement is indeed not met as the number of claims has been significantly low and more people would have brought forward the claims if the fees were not too expensive to the point it was unaffordable. Additionally, the Lord Chancellor’s argument was not convincing regarding the low-income household’s sacrifice to pay the ET fees which was rather impractical.
Using all the reasons, Lord Reed held that the Fees Order did effectively prevent access to justice, and hence, it was unlawful. Lord Reed also had found and declared that there were errors in the second source, the Review Report which the Lord Chancellor relied upon which focused on the intrusion to the right of access to the court was too much even if it intended to only shift the burden from taxpayers.
7.2 EU Law
Under the EU law which is also currently considered as the assimilated law has impacted under the principle of effectiveness that where the procedural requirements of the use of domestic actions must not be completely be barred to access to the rights conferred by the EU law while citing the case of Impact v Minister for Agriculture and Food (Case C-268/06) [2008] ECR I-2483 at 106. It was also held by Lord Reed that with the aim to impose the financial restrain on access to remedy itself it is not wrong on the account of proper administration of justice, the restraint must retain “a reasonable relationship of proportionality between the means of employed and the legitimate aim sought to be achieved citing some EC cases.”
The limitations were also found by Lord Reed to be only pursued by a legitimate claim and a reasonable relationship of proportionality to be achieved while citing the case of Teltronic – CATV v Poland [2006] ECHR 48140/99 at 110. A factor was later also included that the Fees must be coherent with the amount being claimed in the proceedings as well. Ultimately, the doubt was configured in regarding raising the fees as a solution to an effective remedy (EU Law) respected the essence of the right or was it a means to instead place a burden on individuals who seek justice in courts to enforce their rights.
7.3 Orbiter Dicta
In regards to this, Lady Hale did agree with Lord Reed’s judgement and ratio decidendi as well as pointed out that there was an indirect discrimination against women and others with protected characteristics under s.19 of the Equality Act 2010. It was drawn from the issue where Type B claims which had the higher fees payable particularly put women at disadvantage because a higher proportion of women bring type B claims rather than type A claims. Type A claims were mostly brought on by males.
8. Ratio decidendi
The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice (para 119).
9. Conclusion
In precise, this landmark case has had the Supreme Court to finally squash the Fees Order that imposed extremely and unreasonably high fees on the employment tribunal claimants by producing a judicial decision that the order was ultra vires because of its nature in unjustifiably interfering with the constitutional right of access to justice and indirectly discriminate as well towards woman. Conclusively, the important takeaway that is served upon is that access to justice is inherent to the rule of law which exemplifies that the Executive branch cannot make use of the delegated legislation in order to create financial barriers that obstructs the citizens from enforcing their own statutory rights unless it is explicitly stated and authorized by primary legislation. This judgement leaves an inherent conditional impact by establishing a tribunal claim is not merely a private service as said by the Lord Chancellor but rather a public benefits and using subordinate legislations to just meet the real-world tests of affordability is forcefully whittling away the basic rights. Hence, this case sets a precedent that broadens and covers the civil justice system in terms of disproportionate financial barriers and mandatory resolution processes.
Primary Sources: Case Law
R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51
R v Secretary of State for the Home Dept, ex p Saleem [2000] 4 All ER 814, [2001] 1 WLR 443
R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1996] 4 All ER 385
Donoghue v Stevenson [1932] AC 562
North v Dumfries and Galloway Council [2013] UKSC 45
Attorney General v Times Newspapers Ltd [1973] 3 All ER 54
Chester v Bateson [1920] 1 KB 829
R & W Paul Ltd v Wheat Commission [1936] 2 All ER 1243
Pyx Granite Co Ltd v Ministry of Housing and Local Govt [1959] 3 All ER 1
Raymond v Honey [1982] 1 All ER 756
R v Secretary of State for the Home Dept, ex p Anderson [1984] QB 778
R v Secretary of State for the Home Dept, ex p Leech [1993] 4 All ER 539
R (on the application of Daly) v Secretary of State for the Home Dept [2001] 3 All ER 433
R v Lord Chancellor, ex p Witham [1997] 2 All ER 779
R (Hillingdon London Borough Council) v Lord Chancellor [2008] EWHC 2683
Impact v Minister for Agriculture and Food (Case C-268/06) [2008] ECR I-2483
Teltronic – CATV v Poland [2006] ECHR 48140/99
Secondary Sources: Websites
“R (UNISON) v Lord Chancellor” (Blackstone Chambers) <https://www.blackstonechambers.com/news/r-unison-v-lord-chancellor/> accessed July 7, 2026
Beecroft A, “Beecroft Report on Employment Law”
“Unison in the Supreme Court: Tribunal Fees, Constitutional Rights and the Rule of Law” (Public Law for Everyone, July 26, 2017) <https://publiclawforeveryone.com/2017/07/26/unison-in-the-supreme-court-employment-fees-constitutional-rights-and-the-rule-of-law/> accessed July 9, 2026
