Employment Tribunal Fees, Access to Justice, & Rational Choice Theory: A Primer

Abstract

In the spring of 2017, the UK Supreme Court in Unison v Lord Chancellor heard an appeal against the UK Government’s 2013 introduction of fees for claims brought before employment tribunals. In an earlier article (Vexatious Claims: Challenging the Case for Employment Tribunal Fees) now published as [2017] 80 Modern Law Review 412-442, we extensively engaged with different strands of this litigation. This short note provides a summary of our argument against the Government’s case for employment tribunal fees, explaining how tribunal fees have become a powerful barrier to justice, in violation of domestic and international norms that protect the fundamental right of access to courts or tribunals – from the EU law principle of effective judicial protection to Article 6(1) of the European Convention of Human Rights (‘ECHR’). We set out the key points demonstrating that the regime as introduced violates the very essence of these rights, as the majority of meritorious claimants can expect to be faced with a net financial loss. The Fees Order 2013 is furthermore a clearly disproportionate measure in pursuit of the twin aims of transferring cost from taxpayers to workers and influencing claimant behaviour.