01 February 2017

Despite a reporting a 68% fall in cases between 2013 and 2015, the government insists that workers are not "prevented" from accessing justice, they are only "discouraged".

The Ministry of Justice has finally published its review of employment tribunal (ET) fees, over a year since it was announced and after being accused of deliberately burying evidence of government failure by a Select Committee.

Indeed, the report, released yesterday, reveals that the total number of claims fell by 78% in the first year of the introduction of fees, and by 2015 had seen an overall decline of 62% compared with 2013.

The total number of cases also fell by 66% in the first year, and this drop accelerated to 68% by 2015. Multiple claims (such as where a union brings forth a case affecting multiple workers) were originally hit harder than single claims (by individual workers), falling by 82% (compared with 66%) in the first year.

Less than half of those who took their case to ACAS early conciliation were able to resolve the dispute without going to tribunal, and one in five claimants dropped their claim even though it was not resolved.

Although the report admits that "the fall in ET claims has been significant and much greater than originally estimated", it also celebrates tribunal fees as otherwise a success!

In his foreword, Minister of State for Justice Sir Oliver Heald brushes off concern over the decrease in workers holding their employers to account by saying: "It is hardly surprising that charging for something that was previously free would reduce demand."

He adds: "There is no doubt that fees, alongside the introduction of the early conciliation service, have brought about a dramatic change in the way that people now seek to resolve workplace disputes. That is a positive outcome, and while it is clear that many people have chosen not to bring claims to the Employment Tribunals, there is nothing to suggest they have been prevented from doing so."

Indeed, the rest of the report goes on to insist that it is not in fact that workers can't access justice, only that they are faced with disincentives to do so - as if this in itself is not an effective barrier to justice.

In addition, the report claims that "there is no evidence that maternity and pregnancy discrimination claims have been particularly affected by the introduction of the fees", despite a 45% drop in claims between 2013 and 2015 at the same time as a report by the House of Commons found that pregnancy discrimination is becoming more prevalent (thereby showing more women are experiencing discrimination, but fewer are fighting it in the courts).

"Our assessment of the evidence is that the fall in these types of complaint has been consistently much lower compared to other types of discrimination complaint, and compared to the overall fall in complaints. There is, therefore, no evidence that these types of cases should be treated more favourably in relation to the fees charged," the report points out. It appears the government's argument is that it wouldn't be fair to remedy problems for pregnant women when everyone else has it worse!

In response, the government will now consult on new reform to increase the threshold for those who can apply for fee remittance to anyone earning up to £1,250 a month.

The Institute of Employment Rights will respond to this consultation in due course.

Our expert lawyers, academics and trade union officials will discuss the review and consultation in detail at next week's Access to Justice conference in London. Book your place now