Authored By: Khadija Bilal
Pakistan College of Law
- CASE TITLE AND CITATION
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51
2. COURT NAME AND BENCH
Court: Supreme Court of the United Kingdom
Bench: Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Wilson, and Lord Reed.
- DATE OF JUDGMENT
26 July 2017
- PARTIES INVOLVED
Claimant:
UNISON, a registered trade union representing workers across the United Kingdom, particularly those in low-paid and vulnerable employment sectors.2
Respondent:
The Lord Chancellor, a member of the executive responsible for the administration of courts and tribunals, including the introduction of tribunal fees.3
- FACTS OF THE CASE
In 2013, the Lord Chancellor introduced the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013, which imposed fees on individuals bringing claims before employment tribunals.4 The stated objectives of the fees were to transfer a portion of the tribunal system’s costs to users, encourage early settlement of disputes, and deter weak or vexatious claims.
The fees regime required claimants to pay both an issue fee and a hearing fee, with the amount varying depending on the nature of the claim. Claims relating to unpaid wages attracted lower fees, while discrimination and unfair dismissal claims were subject to significantly higher fees. Although a fee remission scheme existed, its eligibility criteria were strict and excluded many claimants of modest means.
Following the introduction of the fees, there was a dramatic decline approximately 70% in the number of claims brought before employment tribunals. UNISON argued that this decline demonstrated that the fees were unaffordable for many workers and effectively prevented access to justice. UNISON therefore brought a judicial review claim challenging the legality of the Fees Order.
Earlier challenges brought by UNISON had failed due to insufficient evidence of the fees’ impact. However, by the time of this appeal, comprehensive statistical data was available, clearly illustrating the substantial reduction in claims.
- ISSUES RAISED
The Supreme Court was required to consider the following key legal issues:
- Whether the Employment Tribunal Fees Order 2013 was unlawful because it restricted access to justice.
- Whether the Lord Chancellor had acted ultra vires, exceeding the powers granted under the enabling statute.
- Whether the Fees Order was incompatible with constitutional principles, particularly the rule of law.
- Whether the fees were indirectly discriminatory, particularly against women and other protected groups.
7.ARGUMENTS OF THE PARTIES
(a) Claimant’s Arguments (UNISON)
UNISON argued that access to justice constitutes a fundamental constitutional right, an intrinsic element of the rule of law. The organisation maintained that the employment rights established by Parliament were effectively nullified if individuals were unable to enforce them due to excessive fees.
Furthermore, UNISON asserted that the fees were not simply a matter of inconvenience, but rather financially burdensome for a significant number of workers, particularly those with lower incomes. The evidence presented indicated that individuals were discouraged from pursuing even well-founded claims. UNISON argued that this situation undermined both individual justice and the wider public interest in upholding employment standards.
Moreover, UNISON contended that the fees had a disproportionate impact on women, who were statistically more likely to initiate claims related to discrimination and part-time employment, thus constituting indirect discrimination in violation of equality principles.
(b) Respondent’s Arguments (Lord Chancellor)
The Lord Chancellor argued that the fees were lawfully introduced under statutory powers and pursued legitimate aims, including cost recovery and efficient tribunal administration. It was submitted that access to justice does not require tribunals to be free of charge and that modest fees are common across legal systems.
The respondent further argued that the availability of fee remission schemes ensured that those genuinely unable to pay were protected. Any decline in claims, it was argued, could not be conclusively attributed to fees alone and might reflect other factors, such as increased use of alternative dispute resolution mechanisms.
- JUDGMENT / FINAL DECISION
The Supreme Court unanimously allowed UNISON’s appeal.
The Employment Tribunal Fees Order 2013 was declared unlawful and quashed in its entirety. The Court held that the Lord Chancellor had exceeded the scope of the statutory powers and that the fees regime was incompatible with constitutional principles.
As a result, employment tribunal fees were abolished with immediate effect, and previously paid fees were later refunded.
- LEGAL REASONING AND RATIO DECIDENDI
The Supreme Court’s reasoning centred on the constitutional principle of access to justice. The Court held that access to courts and tribunals is not merely a procedural right but a fundamental aspect of the rule of law. Laws enacted by Parliament are ineffective if individuals are unable to enforce them in practice.
Lord Reed emphasised that access to justice must be practical and effective, not merely theoretical. The evidence demonstrated that the level of fees imposed was such that many claimants were realistically unable to bring claims. This constituted an unlawful impediment to justice.
The Court rejected the argument that the statutory power to prescribe fees permitted the imposition of fees that effectively prevented access to tribunals. Statutory powers must be interpreted considering constitutional principles, and Parliament could not be presumed to have authorised such a serious restriction on access to justice without clear language.
The Court also accepted UNISON’s argument on indirect discrimination. It held that the higher fees associated with discrimination claims placed women at a particular disadvantage and were not justified as a proportionate means of achieving the stated aims.
Ratio Decidendi
A statutory power to impose fees cannot lawfully be exercised in a manner that effectively prevents access to justice, as such access is a fundamental constitutional right inherent in the rule of law.
- CONCLUSION AND SIGNIFICANCE
R (UNISON) v Lord Chancellor is a landmark constitutional decision that reaffirmed the centrality of access to justice within the UK legal system. The case clarified that executive powers, even when conferred by statute, are subject to constitutional limits grounded in the rule of law.
The judgment had an immediate and tangible impact, restoring access to employment tribunals for thousands of workers and reinforcing the enforceability of employment rights. More broadly, the decision strengthened judicial oversight of executive action and underscored the courts’ role as guardians of constitutional principles.
The case remains a powerful authority on the relationship between statutory interpretation, constitutional values, and social justice, and continues to influence public law and access-to justice debates in the United Kingdom.
Reference(S):
1R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51
2 UNISON, About UNISON https://www.unison.org.uk/about/ accessed 22 December 2025
3Constitutional Reform Act 2005, s 3.
4 Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893).
