Tribunals review accused of a whitewash

Written By: Ian Hernon
Published: February 24, 2017 Last modified: February 27, 2017

The long-awaited government review of the introduction of employment tribunal fees has been  branded a whitewash.

In his foreword to the review, justice minister Sir Oliver Heald said “there has been a significant fall in employment tribunal claims” since the introduction of fees, “but it is hardly surprising that charging for something that was pre­viously free would reduce demand” and “while it is clear many people have chos­en not to bring claims to the em­ploy­ment tribunals, there is nothing to suggest they have been prevented from doing so”.

Yet in the executive summary the re­view pointed out that “an Acas eval­uation of the early conciliation service has identified a group (which we esti­mate to be between 3,000 and 8,000 people) who were unable to resolve their disputes through conciliation, but who did not go on to issue proceedings because they said that they could not afford to pay. We do not believe, however, that this necessarily means that those people could not realistically afford to pay the fee.”

The review added: “While there is clear evidence that ET fees have dis­couraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so.”

Annex E of the review provided a detailed analysis of claims received before and after the introduction of fees. In the year before fees there were 195,570 claims accepted by the tribunal and 2,249 cases went to an employment appeal tribunal (EAT).

In the year after fees were introduced the number of claims to the tribunal plummeted by 78% to 43,951 and EAT cases were down by 39% to 1,364. In the second years after the introduction of fees, claims accepted were 74,979 — a 62% fall on the period before the introduction of fees and EAT numbers were down by 53% to 1,065.

Public services union UNISON is contesting the fees and its case is due to be heard in the Supreme Court at the end of March.

General secretary Dave Prentis said: “The introduction of fees was a terrible decision. The Lord Chancellor should be big enough now to accept her department got this one badly wrong. Tribunal fees should be scrapped immediately, before any more law-breaking employers escape punishment because wronged workers simply don’t have the cash to take them to court.

“Unfortunately it’s now much harder for people who’ve been treated unfairly at work to seek justice. Women have been the biggest losers, bad bosses the undoubted winners. The government originally said making people pay would weed out vexatious claims. All it’s done is punish lower paid employees with genuine grievances. That’s why our legal challenge continues.”

The findings of the review were also criticised by the Law Society, the representative body for solicitors in England and Wales. President Robert Bourns said: “The minister asserts there is ‘no evidence to suggest’ the fees are limiting access to justice — but the evidence in his own report suggests that tens of thousands of people are slipping through the cracks.

“The truth is employment tribunal fees have had a chilling effect on the number of people able or willing to bring a case against their employer. Particularly affected are claims in areas such as sexual discrimination and equal pay — and the reduction in tribunal cases is not offset by the increase in people using Acas’ early conciliation service. Solicitors working in this area also report that the reduced number of claims has altered the behaviour of employers and we will address this concern in our consultation response.

“No matter who you are, everyone in England and Wales must be able to access the justice system. It is a public good which should not be used to generate revenue. If these fundamental principles are not followed, we risk squandering years of progress and damaging the reputation of England and Wales as one of the fairest justice systems in the world.”

About Ian Hernon

Ian Hernon is Deputy Editor of Tribune