An end to employment tribunal fees

April 15th, 2015

After years of personal teeth gnashing over the disastrous policy of employment tribunal fees, it is encouraging to see that the Labour party has promised to abolish them if elected in May. In its workplace manifesto launched on 1 April Labour states unequivocally that the Tory-led government’s fee system had failed. For those of us who have been arguing against this government’s systematic dismantling of access to justice it was a real hallelujah moment.

This so-called battle on red tape led by the Tories has seen many people with genuine grievances locked out of the justice system. Claims fell by over 70 per cent when fees came in and are continuing to decrease in some areas. The notion that this has put off vexatious litigants, those who have no claim, is not supported by the employment tribunal statistics, as the number of claims that are unsuccessful or struck out at an early stage has risen slightly as a percentage of claims issued. Anecdotally, it is often apparent that the money that people may have spent on legal advice, is now going on tribunal fees and therefore they are not getting crucial guidance on how to present their claim. The effect of this is particularly injurious as the coalition dramatically cut funding to pro bono providers including organisations like the Citizens Advice Bureau, which used to fill the gap. For employees who do make it through the employment tribunal system despite the fees, they can be faced with a recalcitrant employer who does not honour the tribunal judgment and refuses to pay them their compensatory award. This problem has in fact been acknowledged by Jo Swinson, the Liberal Democrat minister for employment relations, in her article for this month’s Employment Lawyers’ Association monthly newsletter. Although, typically for the Liberal Democrats, no solution has been forthcoming during her tenure.

Labour’s business manifesto promise will make a real difference to the lives of people with legitimate disputes who have not had the funds to seek redress. The need for employment tribunals should be obvious since employees are often outgunned in comparison to large and heavily resourced employers. Despite a large body of evidence provided by Unison in its two judicial review challenges of the fee regime, there has been little appetite amongst the judiciary to be seen to overturn Tory led government policy. Unison has received permission to appeal the outcome of these judicial reviews but the hearings are likely to be in June 2015. It is highly unlikely that the court of appeal will produce a judgment that month and there is no guarantee that there will be a favourable outcome if the hearing proceeds, since judges may fight shy of challenging ‘political’ decisions.

The reality is that Labour’s election to government in May is the best chance of seeing access to justice restored. Labour plans to consult with both the Cofederation of British Industry and the Trade Union Congress to agree a way forward. Despite fears in some quarters that these two groups may be polarised on this issue – there is a great deal of communality in their views as evidenced in 2014. Involving representatives of business and employees reflects the true spirit of employment tribunals where a judge is often flanked by two lay members – one from a trade union and one from a business. If Labour wants to build better workplaces, its commitment to abolish employment tribunal fees is a great start.

This article was published by Progress on 8 April 2015.