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Key facts of the case: 

In the UK, most employment law rights can only be enforced in employment tribunals (ETs). In 2013, fees for ETs were introduced with the intention of transferring the cost burden from taxpayers to users, deterring unmeritorious claims and encouraging earlier settlement. Under the Fees Order, payment was required for ETs when a claim form was presented and before the hearing. The amount depended on whether the claim was ‘type A’ – uncomplicated, specified claims – or ‘type B’ – all other claims, including unfair dismissal, equal pay and discrimination claims. For a single claimant, fees totalled £390 for type A and £1200 for type B. Additional fees would also be required on appeal. The fundamental rights dimension of the case turned on the aspect of discrimination in access to justice that was effected by the introduction of fees. The practical impact of their introduction meant that less people (especially from vulnerable groups) were claiming their employment rights before tribunals, with many individuals citing the introduction of fees as the reason for not bringing claims.

Outcome of the case: 

The Supreme Court held that the Fees Order was an unlawful exercise of statutory powers because it had the effect of preventing access to justice. The Court considered that the fees prevented access to justice in practice, even if they were theoretically affordable. The Court noted in this light that in some circumstances, for instance where financial reward was not sought, it would be irrational to bring a claim. Further, although the Order pursued legitimate aims, it had not been shown that it was the least intrusive means of achieving these. The Court noted here that the Fees Order contravened the EU law guarantee of an effective remedy before a tribunal (as enshrined in Article 47 of the Charter) and, because the fees were unaffordable in practice, the Fees Order was a disproportionate limitation on Article 47 in light of Article 52 (1). The Court also found that the Fees Order was indirectly discriminatory under the Equality Act 2010 because a higher proportion of women brought claims under type B. On this point, the Court considered the relevant provisions of the Equality Act in light of Article 47 of the Charter. It found overall that charging higher fees for Type B claims was also a disproportionate means of achieving the stated aims of the Fees Order.