R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent)  UKSC 5
This is a brief summary of the recent decision on tribunal fees.
I will look also at why Lady Justice Hale has got things so right, when she discussed the impact of fees on discrimination.
The issue in this appeal is whether fees imposed by the Lord Chancellor in respect of proceedings in employment tribunals (“ETs”) and the employment appeal tribunal (“EAT”) are unlawful because of their effects on access to justice.
It is argued that the making of the Fees Order was not a lawful exercise of those powers, because the prescribed fees interfered unjustifiably with the right of access to justice under both the common law and EU law, frustrating the operation of Parliamentary legislation granting employment rights. The fee order also discriminated against women and other protected groups. The issues relating to discrimination are addressed in the Judgement of Lady Hale.
ET’s are intended to provide a forum for the enforcement of employment rights by employees and workers, including the low paid, those who have recently lost their jobs, and those who are vulnerable to long term unemployment [para 8].
The fees for a single claimant bringing a type A claim total £390, payable in two stages: an issue fee of £160 and a hearing fee of £230. For a type B claim the fees totalled £1,200, comprising of an issue fee of £250 and a hearing fee of £950. In the EAT the appeal fees were £1,600 [para 18 & 19].
Many claims which can be brought in ETs are for modest financial amounts. While the fees in relation to small claims are related to the value of the claims. This is not the case when it comes to the value of the claims in the ET or EAT.
The reasons for the provision of the fees
To transfer part of the costs (aim 33%) to users. It transpired that the Tribunals were only receiving between 17 to 19% [para 56].
The secondary objective of the introduction of fees was to deter the bringing of unmeritorious claims [para 57]. Rather than simply deter unmeritorious claims, the introduction of fees significantly reduced all claims, the good and the bad.
A further objective was that the introduction of fees would mean more people would settle claims. The result of fees being introduced was that settling claims in recent years has in fact reduced. Some employers deliberately refusing to negotiate to see if the employee would issue the claim [para 59].
Decision of Lord Reed
Is the Fees Order unlawful under English law?
It was held by Lord Reed (with whom the other Law Lords agreed) that the fee order was unlawful because it impact the ordinary man’s ability to access the employment tribunal using English common law or the law granted by virtue of the EU. Due to the fact that the fee order prevented access to justice, it was unlawful ab initio, and must be quashed immediately.
Decision of Lady Hale
Lady Hale found that the Fees Order was discriminatory. She referred to s29 of the Equality Act which stated that a service provider must not discriminate against a person in the provision of that service as to the terms in which the service is provided, by termination of that service to a person or by subjecting the user to a detriment [para 122]. Lady Hale reminded everyone that this provision applied to a public service providers.
The fee’s order Lady Hale pointed out is not directly discriminatory, instead it constitutes indirect discrimination as explained by s19 of the Equality Act 2010. Lady Hale quoted s19 in her judgement and pointed out the prohibited acts: age, race, sex etc. Most women claims Lady Hale pointed out would fall within the ambit of class B claims. Thus women would be paying more for claims compared to men as more women would bring type B claims; rather than type A claims. Thus women Lady, Hale pointed were at a disadvantage compared to their male colleagues. The Lord Chancellor Department ascertained that 45% of women issued part B claims. This was still high and placed women at a disadvantage compared to their male counterpart.
Lady Hale could not find no justification for the provision, criterion and practise which resulted in the indirect discrimination and it is on this basis that she held that the fees order was illegal.
Although it was not stated by Lady Hale, it is obvious if the Fee Order was discriminatory for women, it would have been discriminatory for people who were not white or individuals who were religious and had to bring a religious discrimination claim.
How the fees order was causing a problems
With the advent of the fee’s system, the discriminatory issues surrounding women who were mothers simply got worse. BIS & ECHR 2015 reported the following findings:
- 1 in 9 new mothers lose jobs (dismissed or poor treatment and left work) = 54,000 mothers pa
- 1 in 5 mothers harassed or negative comments about pregnancyat work=100,000 mothers pa
- 10% of mothers discouraged from attending antenatal classes = 53,000 mothers pa
- 1 in 3 mothers no support at work
- 3 in 10 not allowed flexible working hours during pregnancy
Ashamed to say: pregnancy and maternity discrimination therefore really got worse as a result of introduction of the fees. Thus the House of Commons Committee on Equality & Discrimination report of session 2016 &2017 clearly found that there was more discrimination against working mothers.
In terms of access to justice, the committee recommended that the government should consider extending the time limit of 3 months for bringing a claim. They also stated that the government should reduce the employment tribunal fees because of its impact on access to justice.
They also argued that the government should monitor the access to free quality advice on pregnancy and maternity discrimination and should provide additional resources where needed.
Many employment land discrimination lawyers have expressed their absolute delight at this decision. That does include me. So employers who are treating staff unfairly, should reconsider their behaviour as this decision means that they can bring a claim without having to pay fees.
COHABITATION AND THE LAW
This article is intended for people who cohabit.
When people fall in love it is usually with ‘rose tinted’ glasses. No one thinks about what happens if things go wrong. The world becomes a very beautiful place. There are loads of smiles and giddiness. Things are absolutely fantastic, some people marry, form civil partnerships. Then there are those individuals who decide to cohabitation.
When relationships are good, we swim in a sea of happiness. There are ups and downs but people aim to get on. Children may come along, grow up and leave the nest. Couples plan and aim to grow old together. Sometimes however, out of the blue, one partner tells the other that they are no longer in love and they want to leave the nest.
Separation is not much fun, especially when imposed. One party may still love the other party that wants to leave. There may be young children involved; accordingly separation can be pretty painful if you do not want to separate. It truly can be the car crash you did not expect to happen.
The parties with the best legal protection when separating are those who are married or in civil partnerships. So the nightmare scenario is when the parties are cohabiting. If both parties are reasonably well off and in good jobs, they can simply part company and move into new homes; provided everything is agreed. This scenario/situation is not straightforward because even with assets; if the parties cannot agree then they end up in court.
Cohabitation as I have previously stated is the worse legal position to be in when separating. Why? Well your rights are left to the law. Law that was not developed with cohabitees in mind.
The law fails to provide cohabitees with adequate protection, so lawyers have to do a significant amount of legal gymnastics to protect clients who cohabit. Children are afforded some protection. Parents have a duty to house them and to ensure that they are looked after through the maintenance system.
Adult spouses, who cohabit, have no right to maintenance. If the home in which the parties reside is in joint names, that provides a little protection and the parties when trying to part company will look to property law to help with division of the main asset; if their shares in the property have not been defined.
There are however a lot of spouses where one party is the breadwinner. That spouse alone has purchased the family home. The other spouse residing in the property does not work and looks after the child or children. Usually the property owning spouse believes that their partner has absolutely no legal rights whatsoever to their property. Technically this is true, however the law (trust, property, estoppel and the law of contract) can and will be used to try and protect the spouse who find themselves in a weak position.
Without the need for litigation
If the parties can enter into a cohabitation agreement before they cohabit. It would be better than leaving things simply to chance.
Cohabitation agreements will cover for example:-
1. The children (subject to review by the courts)
2. Legal ownership of the family home and other major assets.
3. Payment of bills
4. What happens to the property should the parties split up.
The need for litigation
Where there is a dispute about property and no agreement in place. The parties will have to rely on the law of trusts (Trusts of Land and Appointment of Trustees Act 1996). Under this legislation, the party who issues the claim will be telling the court that there was always an intention to share the property. The court will make a determination as to whether or not the Claimant can establish that such an interests exist. If it does, the courts will make a declaration of trust and will specify the interest of the Claimant.
Litigation should always be a last resort. Rather than going to court, we try our best to persuade adults to reach an agreement in just the same way a mediator would try and make the parties reach a settlement.