The Government’s legal aid cuts may have attracted their fair share of criticism, but another reform with potentially huge implications for access to justice quietly kicks in today.
As of this morning, Employment Tribunals – set up to provide a proper, impartial forum for the resolution of disputes between employees and employers – are no longer free to access. If you’re unfairly sacked, discriminated against or don’t receive wages owed from now on, you’ll need to pay an upfront cost or bite your lip.
The Ministry of Justice claims that the £84m (or £74m, depending on which particular Government document you happen to be looking at) cost of running the Employment Tribunals Service is too high. They say it’s unfair for taxpayers to foot the bill for workers who choose to “escalate workplace disputes to a tribunal” and argue that “drawn out disputes” can “emotionally damage workers and financially damage businesses”.
What this translates to is a fees system compelling claimants (almost always employees or ex-employees) to pay £160 just to begin the process of challenging employers over relatively simple matters like non-payment of wages or statutory redundancy pay.
Should they then want to take the case to a full hearing, they’ll need a further £230. If that seems onerous, spare a thought for those challenging unfair dismissal, sexual or racial discrimination in the workplace, or sackings arising from whistle-blowing, who will now have to cough up £250 upfront, with a further £950 due for a day at tribunal.
There’s no guarantee either that a claimant will get their fees back, even if they win their case. While the new rules allow tribunals to impose a costs order against a losing party, this is entirely at a judge’s discretion, so even if an employee proves that they were, for example, the victim of sexual harassment at work, a good chunk of their compensation awarded could well be swallowed up by fees.
Although the Government’s own impact assesment freely concedes that it “cannot rule out… fees may have the effect of deterring some claimants from bringing a claim”, it insists that the policy is not designed to reduce claims, only to transfer some of the cost from taxpayers. Responding to criticism that fees might put poor people off seeking redress, the MoJ points to the Civil Fee Remission scheme, whereby low-earners and those in receipt of state benefits such as Jobseekers Allowance can obtain a full or partial waiver of fees for tribunal proceedings.
Yet the MoJ is already planning major reforms to Civil Fee Remission and, while it has yet to respond to the four-week consultation it issued in the spring, proposals already floated include a tougher means test, a reduction in the number of benefits accepted as proof of entitlement to fee remission in line with the Universal Credit reforms and a 66 per cent reduction in the time limit for retrospective remission claims, from six to two months.
While it won’t be clear for some months what the what the final reformed remissions system will look like, someone who qualifies for free access to an Employment Tribunal today might not necessarily make the grade come the autumn.
It’s easy to raise the spectre of feckless employees cashing in on an overly-generous system. Indeed, the controversial Beecroft report commissioned by the Department for Business, Innovation and Skills and its rabidly “socialist” Secretary of State Vince Cable, warned of sacked workers with “time on their hands”, who view a free employment tribunal “as a no cost option”.
Beecroft’s report didn’t trouble itself with figures – he famously put the cost of red tape to business at a distinctly unscientific “Who knows?” – but here are a few to consider. Since hitting a peak of 236,100 in the wake of financial crash – when presumably there was a sudden spike in chancers with “time on their hands” – the number of claims accepted for consideration by employment tribunals has fallen by a fifth.
Only eight per cent of unfair dismissal claims are successful at hearing, while there was a whopping, er, zero per cent success rate for equal pay claims in 2011-12. Nobody wants British companies to be bogged down with unnecessary costs at a time of economic stagnation, but if this is a system stacked against employers, it’s doing a pretty good job of pretending otherwise.
Even the Federation of Small Business, which backs the principle of claimants bearing some of the cost for employment claims, has said it believes that the fee levels introduced today may be too high, while prominent employment lawyers argue that the reforms could actually lead to more litigation because of disputes over fee payment deadlines.
Meanwhile, the Institute of Employment Rights think tank warns that, when combined with other changes like the legal aid reforms, the doubling of the qualifying period for unfair dismissal to two years, the halving of consultation periods for collective redundancies, fees will add to a climate “in which it is extremely difficult for workers to receive compensation and support if they are treated unfairly by their employer.” If you’re lucky enough to be in work at the moment, that should worry you.
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