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Justice restored How UNISON BEAT THE GOVERNMENT in the battle over employment tribunal fees

In 2017 UNISON won a landmark legal case against the government. It's been hailed as one of the most significant in the history of employment law.

One year on, the people behind the victory reflect on their long battle in the courts, and UNISON members share the kinds of experiences that remind us why the battle was so critical.

The case started in 2013, when Lord Chancellor Chris Grayling introduced employment tribunal fees, where previously use of such tribunals had been free of charge.

UNISON knew that the fees would destroy its members’ ability to seek justice in the employment courts – and immediately sprung into action.

The union’s single-handed legal battle spanned four and a half years and six hearings, before the Supreme Court unanimously found in its favour.

The judges’ verdict was hailed as a decisive assertion of the right to access to justice – not just for workers in Britain, but in other parts of the law where Whitehall is trying to raise the costs for ordinary people.

The Fees

Most of our hard-won workers’ rights – which have been fought for by trade unionists and others over centuries – are effective only because they can be enforced through employment tribunals and employment appeal tribunals.

In July 2013, this access to justice was dangerously restricted when the government decided to charge fees to everyone who wanted to go to an employment tribunal.

Suddenly, anyone who felt they had been illegally treated by their employer had to send a cheque or pay with a card online – for fees ranging from £390 to £1,600 – before their claim would even be considered.

You may need to go to an employment tribunal if you are:

  • Unfairly dismissed
  • Discriminated against (based on age, race, disability, gender, sexual orientation, religion or belief)
  • Paid below the National Minimum Wage
  • A woman being paid less than a man doing the same job (or the other way round).

Fighting the case

UNISON’s principle was that the introduction of employment tribunal fees was unlawful because they interfered with access to justice under both the UK’s common law and EU law.

The union also argued that fees frustrated the operation of Parliamentary legislation that granted employment rights, and discriminated unlawfully against women and other protected groups because of the complexity and duration – and therefore cost – of discrimination cases.

But the union’s lawyers needed evidence, in particular data that showed that the number of people accessing employment tribunals was falling since the introduction of fees.

At first the government didn’t want to make that data public, so UNISON submitted a Freedom of Information request and forced its hand.

And the official figures revealed exactly what UNISON had feared.

Between October and December 2013 there was a 76% drop in claims, compared to the same months in 2012.

While in the last three months of 2013 just over 10,000 claims were made, in the same period the year before, when there were no fees, 45,240 claims made (a difference of 34,398 claims).

The data showed an even bigger drop in discrimination claims.

Even with this information, the legal process was long and hard. Over four years UNISON’s legal team had to stand before the High Court and the Court of Appeal six times.

But in March 2017, UNISON’s appeal was heard in front of the Supreme Court, the highest court in the UK, with the result announced in late July.

The Supreme Court judges unanimously ruled that the government was acting unlawfully and unconstitutionally when it introduced the fees.

The judges added that if people couldn’t reasonably afford to bring employment tribunal claims, then Parliament’s laws couldn’t be enforced – turning the electoral process into a “meaningless charade”.

What they said

"The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful and must be quashed."

The Supreme Court judge, Lord Justice Reed

"This is a major victory for employees everywhere. UNISON took the case on behalf of anyone who’s ever been wronged at work, or who might be in future."

UNISON general secretary Dave Prentis

"The verdict today is important for everyone across the country, because it’s going to help a lot of families and people out there who’ve got issues with their employment."

Teaching assistant and UNISON rep Clara Mason

"This was too important a fight to give up. We knew our best chance was in front of the Supreme Court, so we just had to keep going."

UNISON legal officer Shantha David

"This case changed the law at the highest level."

The Lawyer Magazine awards judges

The importance of employment tribunals... fair pay

School support staff

“The little person is going to win for a change.”

That’s how a teaching assistant from Greenwich, in South London, describes an employment tribunal case that UNISON is fighting on behalf of 460 school support staff in the borough.

The union is accusing the council of using the torturously complex calculations involved in term-time contracts to short-change its members’ pay.

It all started because one school cleaner was moved from a full-time to a term-time contract and thought that her new pay slip “didn’t add up”.

When she took it to her UNISON branch, they investigated and found that the council’s formula was wrong.

The authority refused to negotiate around the problem, so UNISON decided to take the case to tribunal.

Underpaid: some of the Greenwich school support staff

“From that one cleaner it’s now ended up with the national union involved and hundreds of members right across the borough lodging [their] employment tribunal cases through UNISON,” says Greenwich local government branch secretary Simon Steptoe.

Alongside the improvement in future annual pay, through the correct calculation, a successful challenge would also win staff back pay that could be anything from £500-£1000, depending on an individual’s salary.

The case started when the government’s controversial employment tribunal fees were still in place.

At that point, none of these low-paid members – whether the lone cleaner, or the hundreds of teaching assistants, cooks, kitchen assistants and others – would have been able to pursue their grievance without the union's assistance.

But now that problem no longer exists. As Mr Steptoe notes: “The union has forced the government to remove tribunal fees, which means that in future if an individual has a problem at work they don’t have to worry about whether they can afford to do something about it.”

UNISON rep Cathy Butler, assistant branch secretary Clara Mason and branch secretary Simon Steptoe

At one large primary school in the borough*, about 50 support staff are involved in the pay dispute, mostly women, some of whom have worked at the school for more than 20 years.

Their reaction to finding out that they’d been underpaid was “shock”, “disbelief” and “cheated”.

Says one: “We are the lower-paid in the school anyway, so to feel like someone's been holding money back from us really doesn't sit well.”

Adds another: “We thought, how can something like this happen?” And another: “It makes you wonder if your whole salary's correct. If they've made a mistake on this, are there any other mistakes that we don't know about?”

These are good questions, considering these members’ value both to their school, whose pupils will soon number around 1,000, and the wider community.

While one said she felt devalued by the borough, everyone agreed that they were well respected within the school, not least by their head teacher.

And that reflects their commitment. “We all just like working with the children,” says one. “When we achieve something with a child, when they've progressed, it's really rewarding.”

One colleague, who is part of the school’s inclusion team, adds: “My role also involves helping parents, just sitting down with them, learning if they're having struggles in their own life or with their children's lives. So we're supporting the family as well.”

"I do three jobs. I start cleaning here at 5.30 in the morning, I have a class at 9, then I do lunch duty."

Of course, these women have their own families and their own struggles. A number of them are single parents.

And if their case is successful, every extra penny will help.

“Just surviving from month to month would be a little less of a struggle,” says one. “Having two children and getting them through secondary school is hard, let alone taking them on a holiday, which hasn't happened for the last five or six years.”

Another says that she’d love to take her kids to the coast for a week: "Just to spend time with my children. I can't do that normally."

Many of the support staff do extra jobs at the school, such as lunch-time supervising, to make ends meet.

“I do three jobs,” says one. “I start cleaning here at 5.30 in the morning, I have a class at 9, then I do lunch duty. It’s just to make my money up – to pay my rent, to get food, general living. It’s not to have anything extra, like leisure money."

The tribunal hearing is in September. For many of these members, their fight is as much about the principle at stake, as the money.

“It’s taking a stand,” says one. Adds another: “We need the council to acknowledge that what it’s doing isn’t right.”

Cathy Butler, a UNISON rep, observes: “For a millennia you’ve had the people at the top telling the people at the bottom to do what they're told. You know: 'we're the bosses, we have the power, and if you want any kind of a life you’ll just take our crumbs and you should be very grateful and barrel-scrape all your life'.

“But why should we? Let’s go in there and fight back.”

* The school and its staff members are unnamed because of the legal case.

The importance of employment tribunals... discrimination

Fighting discrimination

It started with negative comments about gay celebrities. As a care worker supporting people with mental health difficulties, Tom* was shocked to have a colleague with such outdated views. The derogatory comments continued until the situation he was in began to dawn on him. “For a good while I suppose I was a bit ignorant to what was going on, and I think that was probably because I'd not really experienced any kind of homophobia prior to that.”

Next, Tom’s colleague ‘outed’ him to clients in the residential care home where they worked, which made his life very difficult. Tom isn’t ashamed of his sexuality in the slightest, but he had chosen not to tell some of his elderly clients he was gay, because he felt it would be easier. The outing led to some difficult situations with clients who were influenced by his colleague’s untoward behaviour.

Tom told his manager, but nothing was done. In fact, it got worse. The colleague sometimes refused to speak to him, for no real reason. This didn’t only affect Tom personally, but also their work in the home: if his colleague had a shift before him, he would need to brief Tom with vital information such as any medication he’d given clients. “But he just wouldn’t tell me.” Then when Tom challenged him, he'd say “just stop being such a faggot” or “stop being such a poof.”

Still nothing was being done to help him. Part of the problem was that he and the bully were often working alone, with the other man making his offensive comments when no-one else could hear. So Tom decided to write down details of everything that was said to him.

The bullying continued. Tom didn’t feel safe at work and he worried about the safety of the vulnerable adults the bully had responsibility for. Eventually the bullying caused Tom so much stress and anxiety that he had to take some time off work. He filed a formal grievance with his employers and wanted his colleague to be dismissed. “I didn't feel it was unreasonable, because of the nature of the things that he'd told me, his general character, and his absolute contempt for me and, apparently, for the gay community.

"I just didn't feel that it was safe for me to be in the workplace or appropriate for him to be working with vulnerable adults at all.”

Unfortunately, his employers decided that because of the lack of witnesses, they weren't going to uphold his grievance. Tom describes this moment as a real blow, and it is what first led him to turn to his union, UNISON.

"They became guilty by not helping me, and not believing me, and by not making changes that they really did need to make."

He got some advice from his rep, and appealed the grievance outcome. Tom still felt there was nothing in place that suggested his employers had taken what he’d told them seriously, or that they were going to do anything about it. They hadn’t changed any policies or procedures and there was nothing to stop others going through the awful time he had been through. So, after discussions with his union rep, Tom decided to take his employers to an employment tribunal.

“The way I perceived it was my colleague's behaviour couldn't be blamed on my employers, it was not their fault that he did what he did. And prior to that, for the most part I had had a relatively happy working life there. But they became guilty by not helping me, and not believing me, and by not making changes that they really did need to make.”

Tom’s appeal to the grievance was eventually upheld and the bully was dismissed, but Tom felt his employer hadn’t protected him adequately and worried the same thing could happen to others in the future. So he persevered with legal action, even though it became a very difficult time in his life.

“It was incredibly, incredibly stressful and the impact that the stress of the situation had on me was considerable.”

Ultimately, Tom's case wasn't heard because his employers agreed to his terms outside the court room.

“I basically just wanted them to say sorry and say they were going to change these procedures. I didn't get that until literally just before we were going to go in front of the judge.”

Although he loved the job, Tom did eventually leave and find a new one. He turned his experience into something positive and now uses it to support others.

He is full of praise for UNISON’s legal team. “Shantha David is a wonderful woman,” he says. And he now advises all his friends and family to join a union, in case they ever find themselves in a difficult situation at work.

“Without that support I would have continued the fight, I would have continued to strive forward and fight for justice, but I don't think I would have known exactly what to do or how to do it.”

* Tom's real name has been changed to protect his identity.

UNISON's legal team

The people that made it happen

When UNISON won the employment tribunal fees case in the Supreme Court in 2017, the landmark victory thrust the union’s in-house legal team into the limelight.

After all, this small band of lawyers and assistants had won a David v Goliath battle against the government, which touched upon the fundamental principles of justice and will have a lasting impact for ordinary people way beyond the realms of labour law.

Not a bad day in the office. Well, around 1,600 days in the office. The case lasted some four and a half years.

UNISON’s current in-house team comprises four employment lawyers and one personal injury lawyer in London (and an employment lawyer in Scotland), two paralegals (unqualified lawyers) and two non-legal staff, all led by head of legal, Adam Creme.

While the outside solicitor firm Thompsons handles most of the personal injury and employment claims for individual members (winning millions of pounds in compensation each year), the staff team handles all appeals in the higher courts, as well as strategic employment law cases – often far-reaching actions that involve issues such as TUPE, equal pay and the national minimum wage.

They’ve had some significant victories, but perhaps none more so than The Queen (on the application of UNISON) v the Lord Chancellor, the formal title of the legal challenge to the employment tribunal fees.

When the fees were introduced in 2013 by former Lord Chancellor Chris Grayling, UNISON immediately saw that they would destroy peoples’ right to seek justice in the employment courts. Having decided to take the government on – a seemingly impossible task at the time – Adam Creme charged legal officer Shantha David to run the litigation.

UNISON head of legal Adam Creme

“I decided that Shantha would be a good fit. And what a good choice that proved to be,” he says. “She's a terrier, she gets her teeth into something and doesn't let go. She has a very strong attention to detail and an extremely strong work ethic.”

Shantha would need those attributes. UNISON’s single-handed battle to reverse the Lord Chancellor’s decision spanned six unsuccessful hearings – three in the High Court and three in the Court of Appeal – before the seven judges of the Supreme Court unanimously found in the union’s favour.

"We had a lot of people contacting us who wanted to say that what we were doing was great and that they strongly supported us."

“As solicitor teams go, ours [for the case] was small,” she recalls. “It was just me and my secretary Kate Osborne. And the legal papers we prepared ran to thousands of pages for each hearing.”

It seems that the shenanigans that feature on legal TV shows like Ally McBeal and The Good Wife are not so far from the truth – whether for Shantha it was endless government gamesmanship or one unsympathetic judge who told a government barrister in an early hearing: “I don’t understand what you’re saying, but I’m on your side.”

At the same time, when Shantha explains why UNISON was counting on the highest court in the land to do the right thing, it’s an evocative reminder of why the law, at its most idealistic, can be so thrilling.

“Our case was about access to justice. It's really odd, but you can’t use words like that in the lower courts – you can’t talk about Magna Carta or they’ll kick you out. But the Supreme Court is the law-making forum and judges can change the law. They can talk about Magna Carta, they are willing to discuss basic principles, the things you learn about in law school, justice, that you get all 'ooh, ahh' about.”

UNISON legal officer Shantha David

Adam observes that most employment lawyers are “lefties”, even if they work for massive commercial firms who act almost exclusively for employers. “They are not usually Tories, but have liberal or left-wing values. And an awful lot of them believe in access to justice,” he says.

“That was one of the very interesting things about this case. We had a lot of people contacting us, judges and people from big practices, who wanted to say that what we were doing was great and that they strongly supported us.”

"When we started doing this case I just wanted to get rid of employment tribunal fees. I could not have predicted it would become this enormous constitutional thing."

And so, as it turned out, did the Supreme Court judges, who declared that the fees order was “unlawful” because it prevented access to justice and “must be quashed”.

Says Shantha: “Their judgment is not just important for workers in Britain, but also for access to justice in other parts of the law where the government is trying to raise costs for ordinary people - for example in civil courts, where legal aid has pretty much gone, and in immigration tribunals.

“People are now looking at ways of targeting those areas using the UNISON judgement. That’s our legacy, which is brilliant.”

Adam has his own amusing view of the verdict. “It’s like that moment in The Italian Job, where Michael Caine says, ‘You’re only supposed to blow the bloody doors off.’

“When we started doing this case I just wanted to get rid of employment tribunal fees. I could not have predicted it would become this enormous constitutional thing, which will touch many, many areas of UK law.

“Special mention should be made of our lead barristers – Karon Monaghan QC, who was with us from the start, and Dinah Rose QC, who joined us at the Supreme Court and whose brilliant advocacy gave us an edge that the government’s lawyers could not compete with. We and our members owe them a debt of gratitude.”

Adam's team have scooped a number of awards for their work on the case, including being named The Lawyer magazine’s ‘best employment team’ in 2014 – back then, for the boldness of bringing the claim against the government. The civil rights organisation Liberty voted both Adam and Shantha ‘human rights lawyer of the year’. Also this year, UNISON won The Lawyer’s ‘litigation team of the year’ for its “great tenacity and perseverance and a result that makes a real difference to a great many people.”

Such awards aren’t won lightly.

Shantha recalls the day after the Supreme Court victory, when she was finally sitting alone at home – and duly burst into tears.

“I was so overcome. It was all the feeling of four and a half years of work – the grafting, the slog, the legal arguments, witness statements, the last-minute dashes to court. You’re so consumed by all of it. And you’re so tired.

“Winning or losing, it’s always a strange anti-climax. You've spent all this energy fighting for something, and then it's over.” She laughs. “It's like the end of a season of Game of Thrones.”

Together, UNISON is strong

Moving on

The long battle to scrap employment tribunal fees lasted four and a half years, ending with the hard-won victory in July 2017.

Because the fees were deemed unlawful, the government had to drop them the very day UNISON won the court case. In the year since then, the number of employment tribunal claims has returned to pre-fees levels.

While we saw a drop of 34,398 claims when the fees came in, when they were abolished the claims rose again. The quarter October - December 2017 saw a 303% increase in claims compared to the same months in 2016 (that's 30,141 more claims).

Ironically, having allowed the tribunal system to downsize during the fees regime, as claims fell, the government is now hiring more judges to deal with the new demand.

The outcome of the case is that people like the school support staff who are being underpaid, like 'Tom' who had to deal with homophobic bullying without the support of his employer, and thousands of others facing all sorts of problems at work, can once again take legal recourse if they want to. In other words, justice has been restored.

If you are a UNISON member in need of urgent advice, call UNISONdirect on 0800 0 857 857. For legal support talk to your branch.

If you are not a member of UNISON, join here.

Credits

Words and design: Rosa Ellis, Demetrios Matheou

Images: Andy Aitchison, Steve Forrest, Ralph Hodgson, Jess Hurd; Lady Justice statue: PA

Graphics: Jon Clark

Credits:

Andy Aitchison, Steve Forrest, Ralph Hodgson, Jess Hurd; Lady Justice statue: PA

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