Tribunal Fees, Access to Justice and Manifesto Promises
By Andrew Worthley
In the run up to the General Election, Russell Brand isn’t the only one repeating the bizarrely misplaced trope that all politicians and political parties are the same. Shining a spotlight on the different political promises regarding Employment Tribunals Fees explodes this myth.
Perhaps more than any other area of legal practice, Employment Law carries the dubious trait of being a political football that takes a good kicking with any change of government. It is also one of the last bastions of genuine and historic political difference between the major political forces in England and Wales. Put crudely, Blue policies tend to favour the deconstruction of employment rights, cutting the perceived terror of red tape and the promotion of free enterprise at the expense of unionised labour. In contrast, the Red Corner continues to promote enhanced individual rights for the employee, fight for stronger wage guarantees and combat the magnificent power of unregulated capital.
As such it should come as no surprise to see that the incumbent Conservative led government has made some of the most dramatic changes to the employment rights landscape for 19 years. The qualifying service period for employees to gain many basic rights was doubled to 2 years and compulsory ACAS conciliation was introduced. Most significant though was the introduction of fees to Employment Tribunals. Created in 1964 as Industrial Tribunals, these publicly funded independent panels have always heard and made legally binding rulings in relation to employment disputes without charge at the point of access. However, in July 2013 an ‘issue fee ‘of £160 or £250 was introduced along with a further £230 or £950 charge for the actual hearing. The cost comparison with Small Claims Court fees is startling. A £300 breach of contract claim in the County Court incurs a £25 issue fee (online) and a £25 hearing fee, i.e. £50. The same sum in the tribunal now costs nearly 800% that at £390.
Shockingly the first published Government figures for the period October to December 2013 recorded a 79% drop (compared with the same period in 2012) in the number of applications lodged with the tribunal. Since then, figures have continued to reflect a drastic reduction in the number of employment tribunal claims issued, and more damningly, the percentage of successful claims has also decreased. Following evidence of a 91% drop in sex discrimination claims, and an overall drop in claims of 80% UNISON is continuing to pursue a Judicial Review challenge to the introduction of fees despite having so far failed in its High Court actions. I was one of 400 employment law barristers who signed an open letter condemning steep rises in employment tribunal fees as a “barrier to access to justice”. The letter points out how “critically, there is no evidence that the introduction of fees has had the effect of weeding out vexatious claims, whilst allowing claims of merit to continue.”
With the impending general election now only days away, it is clear that access to employment justice is not only a political soundbite for glib manifesto promises, but a real issue that affects the lives of millions of people up and down the country. It is important to note that the median award for unfair dismissal claims is only £5,016 and that the value of most discrimination claims ranges from £3,000-£8,000. These relatively modest sums demonstrate that the tribunal system is in the main dealing with solid cases but is not making millionaires out of disgruntled employees. Minor claims for unlawful deductions from wages or breach of contracts, typically brought by people who have been underpaid by two or three hundred pounds are disappearing from the tribunal, given that the cost often outweighs the potential award. This was predicted when the matter was debated in Parliament. There, Labour’s Ian Murray asked Helen Grant whether she thought “anyone who must pay £390 to claim £250 of holiday pay would be deterred from going through the system?” Ms Grant responded with impressive naiveté “I do not think that people will be deterred.” Employers are now able to call the bluff of many potentially meritorious claims in the knowledge that the combination of an issue fee and hearing fee totalling £1,200 is a hurdle too far for a hard-up and out-of-work former employee. The evidence is now unambiguous and damming; fees have prevented thousands of meritorious claims from reaching the tribunal.
This brave new world of Tribunal Fees is less than 2 years old and could still be rolled back before a new status quo is established. Parties could and should be held to their manifesto promises which are highlighted here in the hope that tribunal access might once again be fair and free in the future. Labour is unsurprisingly standing by its roots by pledging to abolish the fee system in its manifesto, although it is unclear what will take its place. The word ‘tribunal’ appears only once in the Conservative Party manifesto, under a section promising to ‘cut red tape’ and boost business. It is further unclear as to when, if ever, the Conservatives plan to carry through their promised review of the system. The Liberal Democrats pledge to ‘review’ the system which would certainly accord with Vince Cable’s reported unhappiness with the current state of affairs. The Green Party has pledged to ‘reduce fees’ but is silent as to by how much. Whichever colour (or indeed colours) finds itself in Downing Street come May 7th, it is clear that the battle for access to employment justice will continue to rumble on.
An employment tribunal is designed to deal with the many claims that may be brought against employers by employees relating to their employment or its termination. The employment relationship is in large part governed by the law of contract and contractual disputes can be dealt with by the ordinary civil courts (usually the High or County Court in England, Wales and Northern Ireland and the Sheriff Court in Scotland). Many other employment rights are contained in statute law and the majority of these statutory rights can only be enforced by employment tribunals (called 'industrial tribunals' in Northern Ireland). Tribunals also have jurisdiction to consider some contractual aspects as well.