Unfair should not mean unlawful, says Tessa Fry
The Supreme Court ruling that tribunal fees are unlawful is surprising given that most of the evidence was rejected in two cases before the High Court and subsequently the Court of Appeal. By contrast, the Supreme Court accepted almost all Unison’s arguments some of which were based on hypothetical examples and assumptions, rather than actual evidence ( R (on the application of Unison) v Lord Chancellor [2017] UKSC 51, [2017] All ER (D) 174 (Jul)).
While the Court of Appeal was sympathetic to Unison’s arguments, it did not consider the evidence provided to be a safe basis for concluding that the Fees Order was unlawful. The Supreme Court, however, ruled that the Fees Order effectively prevents access to justice and is therefore unlawful. In other words, the fees are unfair, therefore they are unlawful.
There was no dispute in either court that since the fees were introduced, the number of tribunal claims had declined substantially. However, the Court of Appeal held that figures relating to the decline in claims, on their own, could not constitute
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