Who's paying (and voting) for Employment Tribunal fees?
It's about politics. So, what three-word issue links the UK's relationship with the EU, public service funding, gender equality and immigration?
Give up?
Employment Tribunal fees.
For non-employment lawyers, this issue may so far have passed you by in the run up to the election – but it will likely be one of the first areas of legal change or consolidation of our new government (whomever that may comprise).
Employment Tribunal fees were introduced in July 2013. The change split opinions: you loved it or you loathed it. Employer bodies broadly welcomed the initiative; employees and their representative bodies saw it as the thin end of the wedge. The fees were structured on two levels (one for simple 'Level 1' claims such as those for unpaid wages or payment in lieu of notice and one for complex 'Level 2' claims such as unfair dismissal and discrimination). Level 1 claims now attract an issue fee of £160 and a hearing fee of £230 and Level 2 claims attract an issue fee of £250 and a hearing fee of £950.
The upshot of this was that the Ministry of Justice reported a 79% drop in claims brought in the Employment Tribunal by the following March.
Much of corporate Britain wondered why the reduction in claims was a problem. The system swiftly weeded out the weak claims at an early stage. But, looked at another way, the time in your life when you are least likely to be able to spend up to £1,200 (not including legal fees) on bringing a civil claim is when you have just lost your job, which means that these fees present a significant barrier to justice for those who have been unlawfully dismissed from their employment, particularly the vulnerable. But there are other, broader judicial and social issues at play:
- Many of our employment laws derive from EU directives, and if potential claimants are dissuaded from challenging the unlawful actions of their employers because of the associated costs then it is more likely that EU employment laws will be breached.
- Should individuals be personally responsible for funding our justice system?
- It is still the case that women typically earn less than men, meaning that these fees indirectly discriminate against women who are even less likely to be able to pay them.
- The same goes for low paid migrant workers, who statistically face enhanced issues in the workplace in the form of National Minimum Wage and working time disputes.
Unison tried to challenge the implementation of Employment Tribunal fees via Judicial Review but were refused permission by the High Court in December 2014. They have been given leave to appeal this decision but that appeal is still pending.
So, what do the parties say about it?
Conservative
Unsurprisingly (it was their initiative, after all), the Conservatives have announced no change to the Employment Tribunal fees system in their manifesto. However, they have pledged to support various employment enhancement initiatives: they will accept the Low Pay Commission's recommendation that the National Minimum Wage should rise to £6.70 this autumn, they promise to support the Living Wage and will challenge exclusivity in zero-hours contracts and the exploitation of migrant workers (ideas on a postcard, please).
Labour
The Labour manifesto pledges to abolish Employment Tribunal fees altogether. They say that this will be part of a wider reform to the Tribunal system in the interests of access to justice, encouraging speedier resolutions for employers and avoiding extra costs to the taxpayer (presumably the latter two points are a way of saying that they will promote alternative dispute resolution in employment disputes).
Liberal Democrat
The LibDem manifesto is a little nebulous on their plans for Employment Tribunal fees. They say they will 'review' them to 'ensure they are not a barrier' but this is only as part of a general move to improve the enforcement of other employment rights (including minimum wage classifications and flexible working arrangements).
Green
The Green Party manifesto pledges to reduce Employment Tribunal fees (they don't say by how much – just 'so that they are accessible to workers'). They also plan to phase in a 35-hour working week and introduce a maximum pay ratio of 10:1 between the highest and lowest paid person in every organisation. Workers of the world, unite!
UKIP
Guess what? UKIP have nothing to say about Employment Tribunal fees in their manifesto. They do, however, have some incredibly interesting thoughts on employment in the UK following an exit from the EU. Apparently, no UK jobs are dependent on EU membership. Enjoy reading through that.
Legal issues of employment always capture the attention of the public because it is one area of law that everyone has a personal interest in. Our politicians know that, but are they doing enough? Will these issues affect the way you vote on Thursday?
Rebecca Rose