In July 2013, the, then, Lord Chancellor (Chris Grayling), implemented the Coalition Government’s policy which sought, first amongst other policy reasons, to limit vexatious claims, made by disgruntled employees, in employment tribunals.
It appeared, from one perspective at least, that employment rights should be diluted to a degree in the interests of smoother employment tribunal administration.
Viewed over recent decades, the changing regulation of disputes through the employment tribunal system (and earlier industrial tribunals) can be considered like the strata in a geological bore hole revealing, to some extent, the dominant political and economic forces present over time.
This might not always coincide exactly with an election that brings a change of political party in 10 Downing Street as the issue seems to arise most often amidst legislative spring-cleaning. Mr Blair’s government, elected in 1998, for example, waiting until 2004 to rearrange the regulatory furniture in this area – albeit still within the boundaries of the Employment Rights Act 1996.
Moreover changes may also be tied to a particular ideological flavour within party politics. Steering a centrist course, New Labour’s regulatory ‘feng shui’ itself envisaged the introduction of fees in an effort to control the burgeoning numbers of claims before employment tribunals. At around £100 the New Labour fees were significantly less than those just contemplated in the UK Supreme Court at the behest of trade union Unison.
Employment relationships are, perhaps, not quite sufficiently urgent a matter to effect change immediately yet are always consciously weighing on the tidy ideology of the incumbent political mind.
Looking back at the legislative movements in this clearly politicised socio-economic field can certainly help to identify which of the two main party political powers have been dominant at any given time in Westminster. (The matter is a reserved one).
A period where employment tribunal regulation tilts in favour of employers tends to arise at the hands of a Conservative administration. A swing more in favour of the employee usually reflects a Labour government at the tiller.
In March 2015 The Guardian published a letter signed by a significant number of lawyers regarding Chris Grayling’s decision:
“The ... fees are a significant barrier to access to justice and are preventing employees from being able to complain about contraventions of their employment rights.
We do not think that the current level of fees can be justified by the suggestion – repeatedly made by the media, politicians and others – that prior to July 2013 a significant percentage of employment tribunal claims were vexatious.
The introduction of fees has had no discernible impact on the outcome of cases. This must mean that meritorious claims are not being pursued because of the fees regime.
The letter urges the government to carry out a review of the fee levels, and urgently. It is signed by 40 QCs and 400 barristers specialising in employment law. Among prominent lawyers supporting the letter are Gavin Millar QC, Helen Mountfield QC and Dinah Rose QC.”
The role of the UK Supreme Court in this context, i.e. with regard to the balance of favour as between employer and employee affected by the regulation of the employment tribunal - the dispute forum that operates to resolve workplace concerns, is to ensure that there is no excessive imbalance effected within the regulation of employment tribunals sufficient to impact upon wider constitutional matters.
In doing so the Court has in mind the inherent inequality in bargaining position as between the parties.
“Relationships between employers and employees are generally characterised by an imbalance of economic power. Recognising the vulnerability of employees to exploitation, discrimination, and other undesirable practices, and the social problems which can result, Parliament has long intervened in those relationships so as to confer statutory rights on employees, rather than leaving their rights to be determined by freedom of contract” (Lord Reed, at para. 6).
Today the UK Supreme Court has held that the Government’s Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/189 i.e. the introduction of fees, for those seeking to challenge employment issues, represented, just as the lawyers’ letter to The Guardian stated, a barrier to justice. That barrier arising not just within the context of EU law but also under the common law.
The UK Supreme Court has detected an excessive swing to starboard likely to cause bow waves unsettling the wider channel of justice.
And possibly unsettling the wider channel of commerce? Some inevitable, jet largely ignored, consequences of commercial motivation were not explicit with the judgment yet are certainly a possible corollary. The BBC considers that aspect in an interesting programme ‘Decoding the News: Shareholder Value’ (First aired Tuesday 25th July, 2017):
The summary of today’s judgment (the numbers in square brackets indicate the paragraphs of the authoritative judgment) notes:
“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 and must be quashed.
The constitutional right of access to the courts is inherent in the rule of law: it is needed to ensure that the laws created by Parliament and the courts are applied and enforced. Tribunals are more than merely the providers of a service which is only of value to those who bring claims before them [65-85]. As a matter of domestic law, the Fees Order is unlawful if there is a real risk that persons will effectively be prevented from having access to justice, or if the degree of intrusion into access to justice is greater than is justified by the purposes of the Fees Order [86-89].”
Unison’s challenge to the legitimacy of the Fees Order of 2013 was rendered more easily surmountable because the change was effected using subordinate legislation.
The apparent lack of any reasoned assessment, within the Government’s calculations, as to the amount of fees proportionate in light of the mischief of vexatious employment tribunal claims seems to have left the Justices distinctly unimpressed:
‘Counsel for the Lord Chancellor were unable to explain how any of the fees had been arrived at.’
Lord Reed, at para. 18, R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent)  UKSC 51
Might New Labour’s proposed fee amount of closer to £100 have avoided the judicial assessment in this instance that the level of fees (reaching towards thousands of pounds) was a barrier to justice by being more proportionate?
Whilst the Court viewed that the employment tribunal was, ‘more than merely the providers of a service’, it cannot be ignored that the system is, nonetheless, still a service in some essential aspects of its role.