Kerry Underwood


with 2 comments

On 9 August 2017 the President of Employment Tribunals ordered a stay of all claims or applications brought in reliance upon the decision of the Supreme Court in R (on the applicator of UNISON) v Lord Chancellor [2017] UKSC 51, which I reported in my post SUPREME COURT: FRIENDS OF THE PEOPLE: UNISON CONSIDERED

The Employment Tribunal President’s order is here.

The stay is “to await decisions of the Ministry of Justice and Her Majesty’s Courts and Tribunals Service in relation to the implications of that decision.”

The Ministry of Justice, or technically the Lord Chancellor, but he is also the Minister of Justice, was the losing party in the UNISON case.

What “decisions” are awaited?

Since when did the loser in litigation decide how the judgment is to be implemented?

The Supreme Court’s decision is sparklingly clear.

Presumably, but I am far from sure as there is no explanation offered, the issue is whether parties can now bring claims way out of time and reply on the powers of Employment Tribunals to allow such claims in out of time, which powers are set out in the various statutes governing employment claims and thus derive from Acts of Parliament.

That is surely a matter for the individual tribunal in each case, subject to the extensive guidance already given by the superior courts in relation to the tests, which are different in discrimination matters and unfair dismissal matters, and which in relation to unfair dismissal have been in for 45 years.

It will be helpful if the Employment Appeal Tribunal or Court of Appeal could give guidance in a case as quickly as possible.

A stay obviously delays that process and appears to be abdicating responsibility for a judicial decision and passing it to the discredited loser in the litigation.

The whole point of the 7-0 Supreme Court decision, which is in uncompromising terms, is that the courts, and not ministers, or even Parliament, control access to the courts to enforce the laws which Parliament makes and which are the sole responsibility of Parliament.

Now, I appreciate that a million old claims will impose massive burdens on an already underfunded court and tribunal system, but the end game of that argument is to scrap courts and tribunals altogether.


On 4 August 2017 the Senior President of Tribunals issued a Practice Statement delegating “functions to staff” in relation to the Property Chamber of the First Tier Tribunal. It is here.

Those “functions” include making “unless” orders, staying proceedings and striking out proceedings.

Striking out a case decides it, obviously.

Should these not always be judicial functions exercised by a judge?


In AM (Afghanistan) v Secretary of State for the Home Department

the Senior President of Tribunals found the First-tier Tribunal had failed to take account of an Afghan boy’s age, vulnerability and learning difficulties.

AM claimed asylum in 2012 but his application was rejected by the then Home Secretary Theresa May in 2013.

AM was 15 at the time and was granted leave to remain in the UK until his 17th birthday.

Reasons for refusing his application for asylum included inconsistencies in his evidence and the fact that he had not demonstrated a risk to his life.

AM appealed to the Court of Appeal who said that the First-tier Tribunal’s response to a psychological report was “wholly inadequate.”

The Court of Appeal sent the matter back to the First-tier Tribunal and said that tribunals should “closely consider whether oral evidence is necessary at all” and whether requiring oral evidence might prevent there being a fair hearing.

Even if there were discrepancies in the evidence, tribunals should consider the extent to which the age, vulnerability or sensitivity of the witness was an element in those discrepancies.

It pointed out that tribunals have the power to appoint a Litigation Friend where access to justice requires it.


On 4 August 2017 the Upper Tribunal held that the Department for Work and Pensions had been unlawfully preventing people who had been refused social security benefits from going to tribunals to challenge the decision.

The Upper Tribunal criticised the DWP’s policy of denying Claimants an appeal if they failed to act within a month, saying that it was obvious that there would be a risk that people with good claims would miss the deadline as many of them were vulnerable.

Since 2013 any Claimant wishing to challenge a decision to refuse benefits has had to apply for a “mandatory reconsideration” before appealing to an independent tribunal.

Where the mandatory reconsideration application is made out of time, there is no right of appeal to the tribunal.

This case was brought by the Child Poverty Action Group (CPAG) on behalf of two Claimants, both of whom have mental health problems and who were denied benefits and were deemed to have failed to ask for a review in time.

CPAG claimed that the policy excluded large numbers of Claimants from the justice system and the tribunal said that this policy had resulted “in a significant number of Claimants who are entitled to benefits not being paid them”.

The tribunal, presided over by a High Court Judge, said that the DWP was improperly making itself “gatekeeper to the independent tribunal system.”

The Upper Tribunal said that the correct position was that where a Claimant made a mandatory reconsideration request at any time within 13 months of the original decision, they will, if dissatisfied, be entitled to pursue the challenge to a tribunal.

The government had argued that there was no need to have access to the tribunal because its decisions on late mandatory reconsideration requests could be challenged by judicial review.

The Upper Tribunal pointed out that not one of the 1,544,805 mandatory reconsideration decisions by the government since 2013 have been challenged by way of judicial review.


These are matters of great concern.

On 3 July 2017 the President of the Supreme Court, in a wide ranging attack on recent governments of all political persuasions in the United Kingdom, said:

“The sad truth is that in countries with a long peaceful and democratic history such as the UK (and I suspect, Australia), we face the serious risk that the rule of law is first taken for granted, is next consequently ignored, and is then lost, and only then does everyone realize how absolutely fundamental it was to society.”

“It verges on the hypocritical for governments to bestow rights on citizens while doing very little to ensure that those rights are enforceable. It has faint echoes of the familiar and depressing sight of repressive totalitarian regimes producing wonderful constitutions and then ignoring them.”

That speech is here.

Tribunals and their Presidents should remind themselves every day that they are part of the court system, not administrators for a discredited government department.


Also see:



Written by kerryunderwood

August 11, 2017 at 11:14 am

Posted in Uncategorized

2 Responses

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  1. “Now, I appreciate that a million old claims will impose massive burdens on an already underfunded court and tribunal system, but the end game of that argument is to scrap courts and tribunals altogether.”

    Kerry, don’t give them ideas! I’m sure some civil servants pondering the HMCTS estate post implementation of the Briggs LJ Facebook court and the plans for Magistrates courts and housing repossession lists to sit at 3:00am would actually have closing all courts and tribunals as a goal!

    Dominic Cooper

    August 11, 2017 at 11:41 am

  2. Dominic

    Ah – the Facebook Court – why did I not think of that! You will see that appearing elsewhere from me!

    The frightening thing is – as I am sure will be demonstrated by comments – that even when the Supreme Court and its President speak in such stark terms, lawyers will not face up to what is happening.



    August 11, 2017 at 11:47 am

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