Published in March 2017 Legal Action - see www.lag.org.uk
3
LegalAction March 2017
The employment tribunal fees review
is a let-down for employees currently
priced out of access to justice
I
t was never going to turn the
clock back to what Legal
Action believes were better
times, but the government’s
long-awaited review of employment tribunal
fees is a crushing disappointment to those of
us who want greater access to justice for people
with work-related legal problems.
After July 2013, when the fees were
introduced, the number of cases brought
before employment tribunals plummeted
by just under 70 per cent. Despite this, in the
review document (Review of the introduction of
fees in the employment tribunals: consultation
on proposals for reform, Cm 9373) published
at the end of January (see page 4 of this issue),
the government does not accept that the fees
have had a chilling effect on access to justice.
The review argues that people are taking their
problems elsewhere rather than bringing their
cases to a tribunal.
Claimants now have to pay a £250 fee to
lodge an unfair dismissal or discrimination
case. A further fee of £950 is charged if the case
goes to a hearing. The review proposes that the
threshold for fee remission is raised to around
the national living wage. In cash terms, for
single people with no children this means they
will not have to pay fees if they are earning
less than £1,250 per month, an increase of only
£165 on the current levels.
At a total cost in fees of £1,200, an unfair
dismissal or discrimination claim is, Legal
Action would argue, well beyond the means
of many people earning above the minimum
wage. A single person on average pay, without a
student loan, will be taking home under £1,800
a month, of which at least a third will be going
on housing costs. The fees for a tribunal case
would therefore burn through the equivalent
of at least one month’s living costs after paying
for rent or a mortgage. The prime minister has
made much of her intention to help JAM (just
about managing) families, but this concern
does not seem to extend to employees unable
MarchLA_03_Editorial.indd 3
Many employees are
settling cases for less
than they are worth.
to enforce their rights at work.
The review argues that the fees have
encouraged employees to seek to resolve
their differences via Acas. Last year (2015/16),
92,000 cases were referred to the service, an
increase of 9,000 on the previous year. At face
value, this looks like an encouraging statistic,
but it is well under the 195,570 claims to
employment tribunals that were made in the
year before the fees were introduced. Also, only
15 per cent of the claims made last year were
settled either privately or on what is known
as a COT3 settlement form, a legally binding
agreement made via Acas. Over 60 per cent of
claims did not make it to a tribunal or settle via
Acas or privately.
Employment lawyers and advisers who
have spoken to Legal Action fear that without
independent legal advice, many employees,
even if they use Acas, are settling cases for less
than they are worth. Many others withdraw
their claims as the employer will not bother to
negotiate before a hearing date is set knowing
that the hearing fee is likely to discourage the
employee from pursuing the matter.
Legal Action ’s main issue with the
government’s analysis of the impact of tribunal
fees is that it is based on the cases that get
into the tribunal system rather than the many
thousands more that don’t get that far as
people are discouraged from bringing them.
Pregnancy dismissal and breach of maternity
rights cases provide a good example. The
review rejects the House of Commons Justice
and Women and Equalities Committees’
recommendation that special consideration
should be given to pregnancy dismissal and
maternity rights claims. It argues that there
has not been a disproportionate decrease in
such cases, but this ignores the evidence of
widespread discrimination against women on
grounds of pregnancy and maternity.
Research by the Department for Business,
Innovation and Skills and the Equality and
Human Rights Commission (Pregnancy
and maternity-related discrimination and
disadvantage: experiences of mothers, November
2016) found that one in nine mothers were
either dismissed or otherwise felt forced to
leave due to their pregnancy or maternity. The
report concludes that this could mean as many
as 54,000 mothers per year are discriminated
against by employers. In the year April 2015 to
March 2016, only 1,297 pregnancy dismissal and
detriment due to maternity claims were brought
(Tribunals and gender recognition certificate
statistics quarterly: July to September 2016,
annex C: employment tribunal receipts tables,
table C.2, Ministry of Justice, 8 December
2016). These statistics suggest that less than
2.5 per cent of such cases are making it to a
tribunal claim.
One welcome change suggested in the
review is the concession on fees charged to
former employees claiming payments from the
National Insurance Fund. The most common
type of claim in such cases is for redundancy
and other payments owed by employers that
are insolvent or have ceased trading. Legal
Action argues that the government should
consider widening this concession to include
discrimination and pregnancy dismissal cases
because of the seriousness of the injustice
suffered by the employee. We would also argue
that the means test for remission of fees should
be substantially raised to at least include
people on or below the average wage. This
would be the only way of rebalancing a system
that is, due to the imposition of fees, now so
substantially weighted against employees. m
Steve Hynes
LAG director
24/02/2017 12:15