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.
“106. EU law has long recognised the principle of effectiveness: that is to say, that the procedural requirements for domestic actions must not be “liable to render practically impossible or excessively difficult” the exercise of rights conferred by EU law: see, for example, Impact v Minister for Agriculture and Food (Case C-268/06)  ECR I-2483, para 46. It has also recognised the principle of effective judicial protection as a general principle of EU law, stemming from the constitutional traditions common to the member states, which has been enshrined in articles 6 and 13 of the European Convention on Human Rights and which has also been reaffirmed by article 47 of the Charter of Fundamental Rights of the European Union”.
“107. Article 47 guarantees in its first paragraph that “everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal”. In terms of article 52(1):
“Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
In that regard, the court has said that although the interest of the proper administration of justice may justify the imposition of a financial restriction on access to a remedy, that restriction must retain “a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved”: see, for example, SC Star Storage SA v ICI (Joined Cases C-439/14 and C-488/14), judgment given 15 September 2016, para 55; DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland (Case C-279/09)  ECR I-13849, paras 47 and 60. The burden lies on the state to establish the proportionality of restrictions where, as in the present case, they are liable to jeopardise the implementation of the aims pursued by EU directives”.
“108. Article 52(3) of the Charter provides that in so far as the Charter contains rights which correspond to rights guaranteed by the European Convention on Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the Convention. In considering the application of the first paragraph of article 47 of the Charter, it is therefore necessary to consider the case law of the European Court of Human Rights on the corresponding guarantee in article 6(1) of the Convention: see DEB, para 35”.
“116. Returning to the application of article 47 of the Charter, it follows that the proportionality of the Fees Order in issue in the present proceedings is not determined solely by the affordability of the fees (although if they are unaffordable by some people, then the Order is unlawful under EU law in so far as it applies to claims based on rights derived from EU law). Proportionality also requires other factors to be considered, including the stage of the proceedings at which the fees must be paid, and whether non-payment may result in the claim’s never being examined on its merits. They also include a factor which is of particular importance in the present case, namely whether the fees are proportionate in amount to the sums being claimed in the proceedings. Ultimately, the question is whether the limitation of the right to an effective remedy resulting from the Fees Order respects the essence of that right and is a proportionate means of achieving the legitimate aims pursued, or has led to an excessive burden being placed on individuals who seek to enforce their rights”.
“117. Given the conclusion that the fees imposed by the Fees Order are in practice unaffordable by some people, and that they are so high as in practice to prevent even people who can afford them from pursuing claims for small amounts and non-monetary claims, it follows that the Fees Order imposes limitations on the exercise of EU rights which are disproportionate, and that it is therefore unlawful under EU law.”
“123. This prohibition [of discrimination] applies as much to public sector providers of services to the public as it does to the private sector. The Government clearly sees the provision of Employment Tribunals as a service to the public, to which the prohibition in section 29(2) would apply, as that is why it has chosen to charge the users for that service. But even if it were not seen as the provision of a service, it would clearly be the exercise of a public function, to which the prohibition in section 29(6) applies. Furthermore, to the extent that in providing for the claims which may be brought before an Employment Tribunal, the United Kingdom is implementing EU law, the United Kingdom must respect the Charter of Fundamental Rights of the European Union (article 51). Article 21.1 provides that:
“Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”
“124. It is not suggested that the Fees Order is directly discriminatory on any of the grounds prohibited either under the Charter or the 2010 Act. Rather, it is suggested that the Order is indirectly discriminatory within the meaning of section 19 of the 2010 Act, which is itself based on the concept of indirect discrimination in EU law:
‘(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if -
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are -
marriage and civil partnership;
religion or belief;