04 March 2012

As the misnamed Ministry of Justice considers responses to its consultation paper on charging fees in employment tribunals, IER notes that a cursory glance at the state of British employment rights and trade union freedoms highlights the extent to which access to justice is systematically being shut down for British workers.

The chronology of Con-Dem policies and proposals speaks for itself. Cuts to the legal aid system of £350 million; increases to the qualifying period for unfair dismissal from one year to two; nnNew threats to the right to strike; further restrictions on balloting procedures; new proposals to end facility time for trade union reps; exempting small firms from "dismissal regulation"; and now proposals to charge workers for using tribunals.

Workers are being regulated out of the justice system and denied a collective voice at work - all at a time when they most need protection.

Making workers pay for the right to pursue a grievance against their employer at tribunal is just one aspect of a wider attack on access to justice.

Other proposals in the pipeline include compulsory conciliation before an employment tribunal can be lodged, removing lay members from unfair dismissal tribunal cases and the proposal that employers can engage in "protected conversations" with employees without that conversation being used in tribunal - a bullies' charter in the making.

But the fees proposal tips the scale too far. In a consultation document issued in December last year the government outlined plans to introduce charges by April 2013.

Under the proposals workers will have to pay a fee of £250 to lodge a tribunal claim and a further fee of £1,250 if the case goes to tribunal hearing.

But these are just initial figures. Just like university fees, we can expect them to increase if embedded in the system.

Moreover, while every dispute involves two players, there are no proposals to make employers contribute to the costs.

The government argues that fees will be returned if the claimant ultimately wins.

But according to the MoJ's own research in 2009 - curiously not referred to in the consultation paper - more than 42 days after judgements were issued, only 53 per cent of claimants had been paid their award in full (full being a median figure of £3,000).

As long as 12 months after judgement an alarming 31 per cent of claimants had not been paid at all.

So if workers are already having difficulty recovering their awards, what justification can there be for asking them to pay a fee upfront?

The government also argues that the poor will be protected by extending the current system of fee remissions (waivers) operating in the civil courts.

But according to the Citizens Advice Bureau "the civil court fee remission scheme is not fit for purpose. Indeed, it is so unfit it has come close to passing away."

In December 2009 a report commissioned by the MoJ said that the remission scheme was so complex that it was poorly understood even by the officials administering the scheme. The same research reported that a shocking one in three of all decisions against granting remission was found to be incorrect.

The government's justification for this latest attack on workers' rights is based on two widely criticised arguments.

First, that "taxpayers" shouldn't be asked to foot the bill of running the tribunal service.

Second, that enforcement of employment rights deters the creation of jobs.

In reality the proposals are driven by ideology - an ideology that wants to see every public provision, including access to justice, opened up as a private service with a price tag and every burden on business, most notably employment rights, removed from employers.

If the burden on taxpayers was the real problem, how can the government account for the deafening silence about the taxpayers' subsidy to employers who go to court?

Why is there no mention in the consultation paper of the fact that employers can write off their legal costs - and any compensation awarded against the business - against tax, leaving the rest of us to pick up the bill?

Nor do the arguments about growth and job creation stand up any better to scrutiny.

Even the Chartered Institute of Personnel development (CIPD) said: "Failings in management and leadership ... are a far greater brake on growth than UK employment law" and that the "legally fraught ideas" of protected conversations and extending the qualifying period "risk making a bad problem worse."

It seems the fees scheme has few if any supporters.

Even the MoJ-sponsored body overseeing administrative justice and tribunals, the Administrative Justice and Tribunals Council (AJTC), said the changes would "bring little benefit to employers or to the tribunal system while having a disproportionate and chilling effect on employees."

The AJTC went on to criticise the government's approach to consultation saying it gives "an overall general impression of ill-considered and hasty policy-making ... based on little evidence."

In response the government has decided not to consult at all on the principle of charging, saying it already has the power to introduce fees. The consultation simply looks at how and how much.

What is the point of a judicial system that workers cannot afford? Be warned - if you create a class of people disenfranchised from civil justice then you leave them with little choice but to engage in civil disobedience.

IER's response to the MoJ consultation paper can be read here

Carolyn Jones, Director.