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.
Original language | English |
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Article number | dwx082 |
Pages (from-to) | 1-45 |
Number of pages | 45 |
Journal | Industrial Law Journal |
Volume | 47 |
Issue number | 1 |
Early online date | 6 Feb 2018 |
DOIs | |
Publication status | Published - Mar 2018 |