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47 Indus. L.J. 1 (2018)

handle is hein.journals/indlj47 and id is 1 raw text is: Industrial Law Journal, Vol 47 No. 1, March 2018 V Industrial Law Society; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com. doi:10.1093/indlaw/dwxO32 Employment Tribunal Fees and the Rule of Law: R (Unison) v Lord Chancellor in the Supreme Court MICHAEL FORD* Acceptance Date December 19, 2017; Advanced Access publication on February 6, 2018 ABSTRACT In R (UNISON) v Lord Chancellor (Equality and Human Rights Commission Intervening) the Supreme Court held that fees for bringing claims in the employ- ment 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 en- forcement of employment or social rights is left to individual claimants, the para- digmatic 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. *Professor of Law, University of Bristol, OC Old Square Chambers, Counsel for the Equality and Human Rights Commission in the UNISON case, e-mail: Michael.Ford@bristol.ac.uk. Sincere thanks to those who provided comments on drafts of this article-Abi Adams, Alan Bogg, Serena Crawshay-Williams, Simon Deakin, Keith Ewing, Sarah Leverton, Roy Lewis, Karon Monaghan OC, Doug Pyper, Tonia Novitz, Elizabeth Prochaska and Dinah Rose OC-and to participants in the Industrial Law Society Annual Conference and in an EHRC spotlight event on access to justice. The case would never have reached the Supreme Court without the perseverance of the legal team in UNISON-Adam Creme, Shantha David and Bronwyn McKenna- and many others who worked on the case, too numerous to list, contrib- uted to the eventual result. 1

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