The Supreme Court’s decision in R (UNISON) v Lord Chancellor  UKSC 51 is undoubtedly the blockbuster case of 2017. With one voice, and with one stroke, the seven Justices quashed the Tribunal fees regime. If there was a stand-out point that resonated with the country’s most senior judges, it was the dramatic fall in the number of claims by some 66-70%. In and of itself, this indicated a ‘system failure’. Those being failed were low to middle income employees. Quite simply, they were being priced out of access to the tribunals.
A secondary point related to the two-tiered nature of the fees regime. In setting higher fees for discrimination claims (classed as ‘Type B’ claims), the regime was itself considered to be indirectly discriminatory against women. How ironic.
The Supreme Court’s decision will be roundly welcomed by all practitioners, whether employer- or employee- focussed. It is a significant victory for access to justice. Whether or not the ‘empire strikes back’ with, perhaps, a renewed and better-considered fees regime, remains to be seen.
In this edition of the newsletter, Rob Golin considers the concept of associative discrimination in the pregnancy context. His article explores the question: to what extent can male employees invoke rules designed to protect pregnant women?
Meanwhile, Tom Emslie-Smith provides a case law round-up, selecting some of the more significant appellate decisions. They include the Supreme Court’s other big decision this summer, Essop v Home Office  UKSC 1264, which rejects
attempts to over-complicate the law on indirect discrimination. To establish a prima facie case, a claimant need only idenfy a disparate impact produced by a PCP and does not need to hypothesize or explain why it exists.
Happy reading. Changez Khan.