The Supreme Court’s decision came as a surprise because previous challenges to the fees system brought by the trade union Unison had failed in the lower courts. However, the Supreme Court was quite clear in its finding that requiring a claimant to pay fees of any sort in order to seek redress for work-related wrongs prevented access to justice under both English and EU law.

“The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful ab initio, and must be quashed.” Supreme Court

This ruling is good news for workers. Employment tribunal claims have been in significant decline since fees were introduced in 2013, and it was widely accepted that fees had effectively deterred workers from bringing tribunal claims. It remains to be seen whether the abolition of fees will lead to a reciprocal sharp increase in new claims.

One notable difference between the present day and the situation prior to the introduction of fees is the operation of the Acas early conciliation system, which became a mandatory part of employment tribunal proceedings around the same time as fees. Would-be claimants are still required to engage in conciliation prior to lodging a claim. While the fees system was in place, employers could negotiate from a position of strength safe in the knowledge that a worker was unlikely to continue with a claim given the daunting level of fees demanded. Now, employers have lost their major bargaining tool and will have to treat any conciliation exercise much more carefully.

Unison had challenged the fee scheme by arguing that fees made it exceptionally difficult for an employee to bring an Employment Tribunal claim. They had also argued that the fee scheme operated in a discriminatory manner, particularly in relation to women. The High Court dismissed both of these arguments.

The Court first considered whether employees were effectively barred from bringing claims in the Employment Tribunal, and found this was not the case. The Court said although some employees might find it difficult to pay Employment Tribunal fees, this did not satisfy the test, which required that it must be virtually impossible or excessively difficult for an employee to bring a claim.

“The setting in place of a regime that merely discourages those with no arguable grievance cannot constitute an interference with a right of access to the court.” High Court

The Court was dismissive of Unison’s reliance on statistics to support its arguments. It noted that although the statistics showed a striking reduction in the number of Employment Tribunal cases, this was not sufficient to draw the conclusion that workers were effectively barred from bringing claims due to the cost involved.

“The statistics relied upon in this case raise a legitimate question about the operation of the new regime, but they do not provide the answer to that question.” High Court

Better evidence would be actual cases in which the Court could review an individual’s income and expenditure and decide whether the person had been effectively barred from bringing a claim.

Even if the union’s arguments were to be made out, the High Court felt that removal of the fee scheme altogether was not an appropriate solution. The Court stated that it would be more sensible to allow the Lord Chancellor to exercise his discretion to waive fees where exceptional circumstances necessitated it.

The High Court also dismissed Unison’s arguments on the fee scheme operating as a form of indirect discrimination, particularly in relation to women. The statistics proffered by Unison did not support their view that such discrimination had occurred. Even if the scheme was discriminatory, the Court felt its introduction could be justified as the cost of running a Tribunal service required some contribution from those who bring claims.

Soon after the judgment was published, Unison announced plans to appeal. The matter therefore continues to run.

CASE R on the application of Unison (No. 2) v (1) The Lord Chancellor (2) Equality and Human Rights Commission, High Court, 17 December 2014