Wednesday 08 February 2017

A one-day conference
Unite the Union, Theobald’s Road, London WC1X 8TN
9.30am - 3.00pm

Organised by the Institute of Employment Rights and sponsored by Morrish Solicitors

About the Conference

By Roger Jeary

The Institute's first London conference of 2017 followed up last year's debate on Tribunal fees with an analysis of workers' access to justice. Chair for the day was Nerys Owen from the LRD and she welcomed delegates, drawing attention to the review of the Tribunal Fees recently published, which she described as a “whitewash", since the government argues that the changes had met their objectives of making the claimant pay and, unsurprisingly, reducing the number of claims.

Judge Brian Doyle, President of Employment Tribunals

Judge Brian Doyle, President of Employment Tribunals, provided the conference with an overview of the general position regarding access to justice in Employment Tribunals. Referring to the UK's unwritten constitution he felt that recent events had brought home how fragile the concepts of the rule of law and the acceptance of the independence of the judiciary actually are. He did, however, emphasise that access to justice is an essential element for the rule of law. As far as employment law is concerned Judge Doyle told delegates he would examine four points - Tribunal fees, the HMCTS (Courts) reform programme, the Briggs review of Civil Court Structure and the consultation document on ET reform.

On ET fees, he pointed to the almost immediate fall of 67% in claims which had been maintained since their introduction. He distinguished between correlation and causation of the impact of fees whilst accepting that the introduction of fees would have been a factor in the drop. The recent review by MoJ defended the employment tribunal fee system insofar that the objectives of the system had been broadly met. A proportion of ET costs are now being met by claimants but the Review rejected that employers should make any contribution. The Review also argued that ACAS conciliation had been effective but Judge Doyle questioned how you measured such effectiveness. He also pointed to the 6-8,000 people who lodged claims but did not proceed to a hearing and asked why this was. The House of Commons Select Committee has suggested that a more acceptable level of access could be restored by seeing a substantial reduction in the quantum of fees and a reduction in threshold for remission of fees. The internal review did not accept any reduction in fees and only proposed raising the gross income of an individual to claim remission without making any changes to the capital threshold, and household income being the measurable test. The Review also proposed to raise awareness of remission and exempt provisions. Turning to the Unison challenge to the introduction of fees, Judge Doyle told delegates that the challenge was based on using EU law, the adverse impact on women and disabled claimants, and the breach of public sector equality duty. This challenge will be heard in the Supreme Court on 27th March.

On the HMCTS reform programme, he said that reforms can sometimes have unintended consequences. He reminded the conference that faced with diminishing resources the Courts had put forward a reform programme including reduced estates, which whilst understandable will require many people to travel further to access justice, and increased use of IT to make procedures were intended to make justice more easily accessible.

The Briggs review looked at the court structure including an online dispute resolution of cases up to £25,000. How ETs will fit into this has yet to be considered. LJ Briggs also raised the issue of whether the timing is right to bring employment legislation into the court system.

On the ET reform consultation, Judge Doyle summarised its principles. It is intended that claims will be largely digitised and the process will be simplified; a broad range of duties will be delegated to case workers from judges; and lay members will be involved according to their specific expertise. Simple cases may not be subject to a full tribunal hearing and some might be adjudicated without formal hearings but dealt with online or by correspondence.

By way of conclusion the aims of the HMCTS and Briggs reviews is to allow individuals to present their claims more simply and more efficiently with less complexity and less cost. He posed the question of whether tribunals will emerge from this review better or just unrecognisable as we know tribunals today or certainly from when they were first introduced.

Download Judge Brian Doyle's Paper

Download Judge Brian Doyle's Presentation

David Sorenson, Morrish Solicitors

The second speaker was David Sorensen of Morrish Solicitors. He started by asking what is Access to Justice? He argued that it was a fundamental right of a free society but it has to be understandable and we must have the ability to enforce it. He referred to quotes from Magna Carta - "We will sell no man, we will not deny or defer to any man either Justice or Right” - and also, unusually for trade unions, to Winston Churchill "..courts should administer open and well established laws which are associated with the broad principles of decency and justice” with “fair play for poor as well as rich, for private persons as well as Government officials.” However, Shami Chakrabarti has said “There is no longer a level playing field. When it comes to legal advice, the rich can pay, there not-so-rich will struggle to find the means and under the new reforms, even the poorest may be shut out.”

What harms access to justice? David pointed out, amongst other things, to the removal of protection and rights, expensive court fees, lack of lawyers with employment expertise and complexity. On removal of protection and rights, he included a redefinition of liability for workplace accidents, limiting compensation for certain injuries, extending the unfair dismissal qualifying period from one to two years, and removal of lay members in ETs in most claims not involving discrimination.

He also referred to cuts in regulators such as HSE and EHRC which impacts on the oversight of regulation. On court fees he drew attention to a quote from the Lord Chief Justice,”..our justice system has become unaffordable to most..”. This includes not only Tribunal fees but is generalised across the court system; costs can be enormous. Closure of courts, referred to by Judge Doyle in his explanation of future planned reform, also cause harm through increased travel time and cost to get to court, and mixing criminal and civil cases in the same building which can also be a deterrent. He also questioned the promised IT reforms and whether funding and poor IT systems would turnout to be a solution or a problem.

On access to advice, David pointed to closures of law centres - a 55% reduction in eight years from 2005-2013. The cost of lawyers is also a problem, with changes to the small claims limit for personal injuries increasing to £5,000. This means that legal fees will no longer be paid by the insurer if they win. Costs awarded in ETs are now higher and the change in procedures means they are more likely to be requested in ETs. The complexity of proceedings in ETs is also a deterrent.

Turning to legal aid cuts, David said that these have removed 500,000 individuals from being able to access legal aid. This he said had had an impact on homelessness, a rise in suicides, and a reduction in domestic abuse claims.

On the Review of ET Fees, David agreed with the Chair’s description of this review as a Whitewash. He drew attention to a comment from the Minister responsible who had said that the people were “..discouraged but not prevented from bringing claims". The only cheerful outcomes of the review were the widening fee remission, and the removal of ET fees for limited claims to the NI fund.

Download David Sorenson's presentation

Diana Holland, Assistant General Secretary, UNITE

The original GLA represented good practice through a tri-partite body: a preventative system where without a license you could not operate, a protective mechanism for the most vulnerable workers; and a prosecuting arm in conjunction with others. However, the constitution has now changed and is no longer tri-partite. Appointments are made individually and no trade unionists are currently on the Board. Responsibility has moved from DEFRA to the Home Office, and whilst the extension to other sectors is welcome, no additional funds are available and there is no extension of licensing.

The changes were introduced through the Immigration Act 2016. It is now called the Gangmasters Labour Abuse Authority (GLAA) and it has seen the introduction of a Director of Labour Market Enforcement who has the role of providing strategic direction for organisations with responsibility for policing and regulating the UK Labour market. The GLAA investigates abuse allegations across the entire UK labour market. It has created a new post of Labour Abuse Prevention Officer.

It does have stakeholder groups to involve everybody together, which will meet for the first time shortly. Sectors will include construction, cleaning, hospitality, social care, warehousing distribution and logistics. Diana compared the reality and rhetoric such as the commitment to act versus resources available and protection from abuse versus enforcement of immigration law.

In moving forward, Diana argued that sufficient resources need to be allocated to GLAA; licensing needs to be protected and introduced; trade unions need to be included and recognised, as do reps in the workplace; also there is a need to ensure strong methods of prevention are built on, not undermined. Cuts to HSE etc. reversed. Diana concluded by underlining the basic truths to combat the climate of fear - for unity not division; equality not discrimination; trade union rights not exploitation; and solidarity not hatred.

Download Diana Holland's presentation

Michael Ford QC, Bristol University

The last speaker in the morning session was Michael Ford of Bristol University, who looked at tribunal fees and the enforcement of labour law. Michael started by reference to the protection of workers' rights enshrined in the Brexit legislation. However, whilst all looked good on paper he was critical about the enforcement of rights. Historically, labour rights were enforced by criminal sanctions but since Donovan (1968) the weight of enforcement is laid upon individuals. The exceptions are health and safety claims exclusively enforced by criminal sanctions as are Gangmasters, Modern Slavery claims. Other exceptions include National Minimum Wage, pensions and breaches of equal pay law. But state enforcement remains the exception rather than the rule.

Michael commented on the ET fees structure and the context in which they were introduced. Knowledge of rights, low awards, lack of legal representation and only 50% of awards recovered. No recognition in the consultation that tribunals were performing a social function. He questioned whether they actually incentivised early settlements, whilst the disincentive to pursue weak claims post fees should improve the success rate, but in fact the success rate has gone down in a statistically significant way.

The review had failed to recognise problems with the fee system. Michael pointed to some examples such as working time claims where there is no compensation for injury to feelings, yet the highest Type B fee is applied. On the remission scheme, the real problem is the disposable capital limit includes not just money in the bank but also disposable assets. And the deterrent effect of the hearing fee was not really covered by the review. Michael said there was no evidence that fees had deterred vexatious claims but the reality was they were just deterring claimants that have a good case but cannot afford the fee. Wages claims have evaporated, with some getting sorted by ACAS, but this is likely to be down to a number of persuasive factors used by ACAS.

The judicial review in which Michael is appearing for the EHRC is a difficult case. There is a conflict between "won't pay" versus "can't pay" arguments, with individual needs difficult to assess. The review has failed to address this point and proposes only minor steps to change the situation. Overall a very dismal picture and no evidence to suggest that fees and regulations have improved the situation.

Download Michael Ford QC's presentation

Gerard Stilliard, Thompsons Solicitors

Following lunch, Gerard Stilliard of Thompsons Solicitors addressed the issues facing injured workers when seeking justice. He referred to Thompsons' campaign #FeedingFatCats and the attacks on working people, which he argued would affect about one million people every year, taking away free or affordable independent legal advice from 95% of injured people included those injured at work. Whilst this was justified and built on the perception of excessive numbers of Motor whiplash claims, it will also impact on small workplace injury claims. The cost of the changes proposed to the Treasury will be £135m every year and insurance companies will receive a windfall profit of £200m annually. This is on top of existing savings made by companies through changes in motor claims costs whilst CEO's remuneration in major insurance companies is rising substantially and premiums also keep rising.

Gerard emphasised that the significance of this is that accidents at work claims will become more difficult to mount. The government is proposing to raise the small claims limit in all personal injury claims from £1,000 to £5,000. Legal advice for such claims will now have to be paid for, and given low damages, it is likely that many claims won't be worth that amount leaving claimants either not pursuing claims or taking claims by themselves. This, Gerard argued, gives a green light to employers to ignore health and safety and threatens the ability of trade unions to provide free legal services to their members.

He suggested that the argument this action is reacting to an "epidemic" of whiplash claims is a con. There is no evidence presented to support the argument and no suggestion that fraud is a problem in work accident claims. Insurers do not pursue fraudulent claims but instead have argued that rather than correct their own systems the government should make it more difficult for claims to be pursued by anyone. He said that this is about removing funding from all injured people to get independent legal representation. He explained that currently if your claim is greater than £1,000 you can recover legal fees from the other side. By raising this limit to £5,000, claimants will not be able to recover legal fees for claims up to this amount. The argument for this change is that it will reduce motor premiums by an average of £40 but government is not proposing to enforce this.

Gerard concluded by telling delegates that opposition to this proposal has come from the Transport Select Committee, the Scottish laws and Lord Justice Jackson. Thompsons' campaign is working with trade unions and is inviting people to sign an online petition and write to their MPs emphasising the negative impact that this move could have on workplace health and safety.

Download Gerard Stilliard's presentation

Kate Ewing, Unison

The final speaker was Kate Ewing of Unison, who presented a passionate picture to delegates about the difficulties faced by homecare workers in securing the national minimum wage (NMW). She started by giving some background to the sector and how homeworkers delivered their services and assistance in the home through private providers. A large proportion of such workers do not receive NMW each year and the absence of enforcement presents a barrier to access to justice. Kate said there were three clear barriers to enforcement. First is the vulnerability and isolation of the workforce. Second is the low awareness of their rights. Thirdly whilst employers argue that they pay above the NMW this does not take account of the real travel time experienced by homecare workers. She also highlighted the complicated nature of calculating hourly pay.

The routes to enforcement present real problems for homecare workers. For homecare workers the cost of pursuing an ET claim could amount to two weeks' pay to recover pay that does not cover the fees themselves. The improvements to the remission provisions would still mean that workers on the NMW working 37.5 hours per week would not be eligible for full remission. The alternative HMRC route is based on a process of "nudging" employers to comply with the NMW Act 1998. The system also allows employers to self-correct the amount owed to workers. This presents difficulties for the worker in establishing the exact amount owed to them due to variations in pay on a regular basis. Unison is arguing that employers should be obliged to set out on the payslip how the wage has been calculated. This is nothing more than they are already obliged to do for other reasons and all that is being asked is that it be stated at the point of salary being paid. Evidence from Unison has been submitted to the Low Pay Commission to seek improvements in the system.

Kate referred to a campaign mounted in Wales which resulted in the employer discovering considerable under payments across their homecare workers which were then refunded. She praised the workers who were prepared to challenge employers when so many employers would respond by cutting their hours. Kate concluded by asserting that denying access to justice, denies access to rights which in turn denies obligations on employers.

Conclusion

The conference illustrated a somewhat depressing picture of access to justice within the current structures of UK courts for workers. It did however also illustrate the importance of trade union organisation in defending workers and the role that trade unions can play in highlighting injustices and challenging employers and government on issues affecting access to justice.

Speakers

Judge Brian Doyle, President of Employment Tribunals
Surveying the general position regarding access to justice in the ET

Download Judge Brian Doyle's Paper

Download Judge Brian Doyle's Presentation

David Sorenson, Morrish Solicitors
The attack on access to justice

Download David Sorenson's presentation

Kate Ewing, UNISON
Homecare workers and enforcement of National Minimum Wage

Michael Ford, Bristol University
Labour law enforcement and tribunal fees

Download Michael Ford QC's presentation

Gerard Airey, Thompsons Solicitors
Positive case precedents in access to justice

Download Gerard Stilliard's presentation

Diana Holland & Howard Beckett, Unite the Union
Prevention of labour market abuse – learning from the Gangmasters Licensing Authority for the new GLAA and Director of Labour Market Enforcement

Download Diana Holland's presentation