Many employment lawyers will have returned from their summer breaks with a smile on their face and a spring in their step. The Supreme Court decision on the lawfulness of fees charged for bringing and pursuing employment tribunal claims will have come as a surprise to many and it is likely to have far-reaching effects in areas beyond employment law, where access to justice and the consideration of individual rights are at issue.

Arguably, it also brings into sharper focus the deficiency in lawmaking at both an executive and legislature level. Employment tribunal fees were never part of any of the political parties’ manifestos at the 2010 general election. They were part of a package of austerity measures put together by the Coalition Government, said to be introduced with the aim of making users pay for the employment tribunal service, rather than the tax payer (even though users were in fact tax payers themselves). While some had the suspicion that fees were introduced at a level to choke off demand (confirmed in some eyes by the comments of Matt Hancock, a junior minister in the Department of Business, Innovation and Skills, applauding the huge fall in claims), this was neither accepted by the Coalition Government nor its successors.

The consultation on the proposal to introduce fees received a largely negative response, particularly given the level of fees proposed. A number of respondents were not against the principle of fees, but did take issue with how high they were proposed to be set. Despite this, and the many warnings given that the proposals would present a significant barrier to people accessing justice and enforcing their rights, the Government pressed ahead to make the proposals law.

Parliament had its opportunity to scrutinise, albeit that the introduction of these fees was being made under secondary legislation, but was either unwilling or unable to prevent or amend their introduction.

Therefore it has been left to the courts to scrutinise and consider competing arguments, and then to make a decision that affects the lives of many, both employers and employees. Some may take the view that it was the Government and Parliament’s role to do that in the first place.

There are significant challenges on the horizon in terms of employment law and the rights of employers and employees. Employment status remains a huge issue. Whatever the provenance of zero-hours contracts and Uber-style working arrangements, their use has grown exponentially in the UK, and large parts of the economy function on arrangements that provide flexibility, but also insecurity. There is a suspicion that such relationships are open to abuse, either of the individual worker, or of the taxpayer, or both.

There have been at least two Government departments that have conducted enquiries into worker status, neither of them producing any meaningful proposals. We have also had the Taylor Review and one would struggle to find any substantive response to the proposals made by Taylor, with legislation to follow. In the meantime, the numerous employment tribunal claims brought by workers against Uber, City Sprint, Addison Lee and others make their way through the courts, with judges being asked to make legislation that did not contemplate such arrangements fit them, or to ‘fill in the gaps’.

On top of this we have Brexit looming large, with lots of promises as to the protection – or enhancement – of workers’ rights, as the UK leaves the EU. Such promises can only be fulfilled by the executive and the legislature taking the lead. Those are not matters that can be left to the courts to decide. Many will be hoping that the debacle over tribunal fees will improve the development and responsiveness of employment law in the future.

Alex Lock, DAC Beachcroft LLP