The Guardian view on employment tribunal fees: denial of justice

Dave Prentis, the general secretary of Unison, can be forgiven for boasting that Wednesday’s supreme court ruling against employment tribunal fees is “the biggest victory in a court in British employment history”. The justices’ decision that the fees, of between £400 and £1,200, are an unconstitutional denial of access to justice, is a triumph both for workers and for the union that has been fighting their corner ever since the fees were introduced almost exactly four years ago. Even the most buttoned-up of lawyers thought that the seven justices who heard the case had done more for working people than anyone in the past decade.

The judgment was more than that, however. It was, above all, a triumphant defence of the rule of law and a brutal reprimand to Chris Grayling, now transport secretary but who as justice minister introduced fees without proper parliamentary scrutiny, without gathering evidence to support his decision, and in a way that undermined the access to justice on which the rule of law depends.

The government defence rested on two arguments. It said that often claims made at tribunals – which typically are to recover unpaid wages or to establish terms of employment or to fight being made redundant while on maternity leave – were ill-founded. Some way of deterring them was necessary. Second, it argued that an employment tribunal amounted to a private dispute resolution service that benefited only the claimant, so it was unreasonable to expect the taxpayer to pick up the tab. Since the introduction of fees there has been a 70% drop in cases, and yet the success rate has actually fallen: even the lord chancellor had to accept that made a nonsense of his first claim. In truth, fees were set so high and the numbers entitled to exemption so low (most claimants would have to be earning less than the minimum wage to get any remission at all), they were unaffordable. The justices were equally unimpressed by the lord chancellor’s assertion that if only low-income families would forgo, say, £20 a week on new clothes or going out – considered part of a minimum income by the Joseph Rowntree Foundation – they could soon afford to bring a case.

But the real sting in the judgment, and the reason why it amounts to more than a vital defence of workers’ rights – although, unquestionably and significantly, it is that too – came in its resounding defence of the precious relationship between voters, their MPs, the government and the law that is underpinned by the courts, a relationship ministers conspicuously failed to stand up for after it was traduced by some newspapers at the time of the Brexit hearings.

“It may be helpful to begin by explaining briefly the importance of the rule of law, and the role of access to the courts in maintaining the rule of law,” began the supreme court’s measured response to the grotesque failure of government. Even the humble employment tribunal, argued Lord Reed, the justice who gave the main judgment, is important not just for the monetary redress it offers to individuals wronged at work, but for the role it performs for society in clarifying and enforcing principles established in law. The tribunals date from the late 1960s, when employment relations were a disaster; they were to help resolve disputes clearly and universally. A case, say, for equal pay may be brought by one woman: but the circumstances in which it is upheld inform everyone. They are not a service merely to an individual, but to society itself.

The supreme court does not say fees are wrong, only that they should be set at a level that anyone can reasonably afford. Access to justice will be all the more important when it comes to enforcing rights that may be at risk after Brexit. As Lord Reed remarked, it is not an idea recently imported from the continent, but a right identified in Magna Carta. Ministers never have an excuse for ignoring it.