Access
to Justice
In 2013 the Government introduced a fee regime in Employment
Tribunals whereby individuals now have to pay a fee if they want to
bring a claim against their employer, or, more often than not, their
former employer. be dismissed for discriminatory reasons
relating to gender or pregnancy/maternity.
Put another way, it seems that women are
more likely to need the protection of the
Tribunal than men are yet women are less
likely to be able to afford it.
seems more likely that the requirement
to pay a fee is what has led to the drop in
claims. On 20 June 2016, the House of Commons
Justice Committee published a report on
the impact of Tribunal (and other) which
concluded that a contribution to the cost
of operating Tribunals from those who
use them is not objectionable in principle
but that preserving access to justice must
prevail over achieving cost-recovery.
Although there is a remission scheme
under which individuals can apply for fee
exemption, the application process and
the qualifying criteria have been criticised
as being unduly onerous and complex.
The justification for introducing fees
was said to be threefold; to make those
using the Tribunal system contribute
towards the cost of it, to encourage
early settlement and to reduce vexatious
claims.
Not only is there an issue fee of either
£160 or £250 payable before a claim can
even begin, Claimants also have to pay
another fee before a trial of either £230 or
£950. In total an individual is looking at a
potential cost of either £390 or £1200 to
pursue a claim.
As most people who want to bring a
claim in the Employment Tribunal do so
because they have been dismissed, the
requirement to pay out a fairly significant
amount of money can be prohibitive.
In fact since the introduction of fees the
number of Tribunal claims has dropped by
around 70% and while the Government’s
recent review concluded that the
increased use of ACAS pre-claims
conciliation has caused or at least greatly
contributed to this reduction in claims, it
36
Unison have made two applications for a
judicial review of employment tribunal fees
both of which were dismissed; one by
the High Court and then by the Court of
Appeal in 2014 but Unison are undeterred
and will appear before the Supreme Court
next week to argue that the requirement to
pay a fee unlawfully restricts UK workers’
access to justice and is in violation of long
established principles of law.
Oxford academics, writing in the Modern
Law Review reported recently that their
research supports the case bought by
Unison and notes that, having regard
to minimum wage rates, it can cost a
worker almost a month’s salary to pursue
a Tribunal claim and that this cost is out
of proportion to the likely recovery. It also
notes that some employers are using the
fact of the fee regime to avoid settling
cases early in the hopes that the hefty
fees will stop claimant’s continuing.
In particular it seems women are more
likely to be adversely effected by the fee
regime in that they potentially suffer a
double detriment as they are more likely
to work part time and/or be paid less
but they are also more likely than men to
The Committee concluded that the
introduction of ET fees has had a
significant adverse impact on access to
justice for meritorious claims. The Report
makes a number of recommendations
for revising the system but whether
those will be implemented remains to be
seen. What is clear is that there are other
ways of the Government’s stated aims that
would have less of an adverse impact on
genuine Claimants and on an individual’s
inherent right to access to justice.
If the Prime Minister really does back
the recommendations of her advisers
as to overhauling worker’s rights and if
she truly does support women’s rights
(as was widely reported in the press on
International Women’s Day earlier this
year), then surely a wholesale review of
the Tribunal fee regime has to take place
as what value is there in having legal
rights if one can’t afford to enforce them?
By Sam Dickinson