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Publication - Professor Michael Ford

    Employment Tribunal Fees and the Rule of Law

    R (UNISON) v Lord Chancellor in the Supreme Court

    Citation

    Ford, M, 2018, ‘Employment Tribunal Fees and the Rule of Law: R (UNISON) v Lord Chancellor in the Supreme Court’. Industrial Law Journal, vol 47., pp. 1-45

    Abstract

    In R (UNISON) v Lord Chancellor (Equality and Human Rights Commission Intervening)
    the Supreme Court held that fees for bringing claims in the employment
    tribunal were unlawful both under common law and as a matter of EU law.
    The judgment has very significant implications for any system in which
    the enforcement of employment or social rights is left to individual
    claimants, the paradigmatic model adopted in the UK. Recent government
    policy has ignored the public function of individual tribunal claims in
    delivering employment rights at the systemic level, exemplified by the
    theoretical assumptions and justifications which lay behind the
    introduction of fees. The Supreme Court’s analysis of the rule of law
    and the common law right of access to justice is in sharp conflict with
    these policies. I discuss the difference between the common law
    principles and the parallel principles in EU law and under Article 6 of
    the ECHR. The article explores the consequences of the judgment for
    cases rejected, dismissed or not brought owing to fees, and its
    longer-term implications for impediments to access to courts and
    tribunals, all the more important with Brexit on the horizon. The
    judgment represents an important triumph of the rule of law over the
    increased marketisation of legal rights.

    Full details in the University publications repository