08 July 2016

The government has been accused of stringing along the Select Committee for Justice on a report reviewing the impact of employment tribunal fees post implementation.

In a Commons debate on Monday (04 July 2016), MPs and members of the Committee from all parties, including the Tories, criticised the Ministry of Justice’s failure to publish the report, which was promised over a year ago.

Labour MP Justin Madders said: “The review was commissioned over a year ago and it has apparently been on the Minister’s desk for nine months. Having heard the Minister previously responsible for this area flounder in a Westminster Hall debate on this subject, I think it is pretty clear that the review has been sat on because the introduction of fees has been a disaster.”

Indeed, the Committee, published a scathing report on government policy concerning court fees - including for employment tribunal - last month, concluding that: “In many cases the existence of fees erects a disincentive for employers to resolve disputes at an early stage. The arguments presented to us by the Government in this inquiry, limited as they are … have not swayed us from our conclusion, on the evidence, that the regime of employment tribunal fees has had a significant adverse impact on access to justice for meritorious claims.”

The Committee called on the government to publish the information collated as part of their post-implementation review; to reduce tribunal fees; to increase the financial thresholds for fee remission; to make changes to the way claims are defined to make the system fairer; and to give special consideration to the position of women alleging maternity or pregnancy discrimination, who may not be eligible for financial help due to savings they have put aside to raise their child.

Several MPs pointed to statistical evidence that the introduction of fees has created a significant barrier to justice for working people. The number of cases brought by single individuals has declined by 67%, claims brought by more than one person fell by 72%, claims relating to the working time directive are down 78%, wage cases dropped by 56%, unfair dismissal claims declined by 72%, equal pay cases fell by 58%, breach of contract claims were down 75% and sex discrimination claims sank by 68%.

In addition, a survey by the Citizen’s Advice Bureau showed 47% of respondents would have to put aside six months of their discretionary income to be able to afford the £1,200 required to make a Type B claim; 82% who were experiencing problems at work said they were discouraged from making a claim due to the fees; and only 29% were aware they could apply for a fee remission.

Elsewhere, ACAS reported that 26% of claimants who didn’t progress their cases said they made the decision to drop their case as a direct result of the affordability of the fees.

MPs also presented wide evidence that the fees have disproportionately impacted upon women and minority groups; and many accused the Tories of putting fees in place for ideological reasons and to make it easier for employers to fire workers.

Robert Neill, a Conservative MP and Chair of the Select Committee, criticised the government’s approach to implementing the fees. He said: “The truth is that the Government did not produce adequate evidence. On the face of it, it seems to have been a ‘wet your finger and hold it up in the wind’ job, rather than being based on significant research. We do not think that that is satisfactory.”

The government had pointed to reducing the number of vexatious claims being taken to tribunal as a justification for its policy, but Mr Neill remarked that “hard material to support that view has not yet been forthcoming”. Other MPs pointed out that it is estimated vexatious claims make up only 2-5% of all tribunal cases.

David Hanson for Labour, reported: “The Committee was unanimous in saying that there is a discriminatory effect that deters claims from the poorest, the lowest paid and those in the most insecure employment. It is therefore hitting those who have no other defence than an employment tribunal, which is now out of reach.”

Several Labour and SNP MPs also pointed to the deleterious affect this has on the economy and on the productivity of the UK as a whole, criticising the approach of the Tory party to employment rights overall.

Mr Madders warned: “A culture has been created in this country that views employment as a flexible, disposable concept, not as the basic building block needed to create a cohesive and prosperous society. When the few rights that we have are locked away in a system that deliberately prevents people from enforcing them, we should not be surprised that so many voices say they feel disfranchised.”

He added: “It seems to me that the Government are incapable of recognising the importance of employment rights. As we enter a period of tremendous uncertainty with the fallout from Brexit, we need, now more than ever, a Labour Government to protect those whom we represent, and we must all reflect on how best to achieve that.”

For more detailed information on the myths that have allowed tribunal fees to be implemented and the problems they are creating for workers across the country, please see the recent Institute of Employment Rights’ Publication Access to Justice: Exposing the Myths.

We have also presented to the Labour Party a Manifesto for Labour Law, which puts forth 25 policy recommendations for the reform of employment law and trade union rights in post-EU Britain.

This Manifesto offers 25 major policy recommendations for consideration. It proposes changing the way in which working conditions are regulated by embedding the voice of workers at national, sectoral and enterprise levels. It moves responsibility for workplace regulation from legislation to collective bargaining. It calls for a Ministry of Labour and a National Economic Forum; sectoral collective bargaining; the repeal of the Trade Union Act 2016 and the introduction of fundamental and enforceable rights for workers. Read more

In the second of IER’s series of Mythbusters, Andrew Moretta considers the many myths surrounding access to justice. The author concludes “the action necessary to remove the legislation and restore trade union freedoms lost since 1979 will now involve breaking the law.” Read more