14 December 2015

Has the introduction of fees for claimants in employment tribunals restricted access to justice?

Few of those practising in the field would hesitate before answering that question.

There is no doubt that the majority of prospective claimants are discouraged from pursuing their claims, and most of them abandon any hope of receiving justice from a system which has been severely damaged by the fees regime.

There are two reviews which have recently been conducted into the fees issue.

The Ministry of Justice has conducted its own review, which is confined to the operation of fees in the employment tribunals. Despite the clear public interest in the topic, and its controversial nature, it was an internal review, and did not take evidence from external bodies. That did not, however, deter those with views on the matter from making representations to the MoJ with their MP. The results of this review have not yet been released at the date of writng. All the indications are that fees will not be abolished. There may be some tinkering with the more obvious anomalies, and it is possible that there will be further adjustments to the remission system, but hopes of any radical revision of the fees regime are likely to be dashed.

Perhaps more likely to rock the boat is the inquiry which has been launched by the Commons Justice Select Committee. This inquiry has not been confined to the fees in employment tribunals but has also covered the greatly enhanced fees which have  been introduced for civil cases, and the mandatory administrative charge which has been imposed on those convicted of a criminal offence. The select committee inquiry has been conducted by a cross-party group of 11 MPs. Its clear focus is upon “access to justice” and there may be recommendations to make substantial adjustments to  employment tribunal fees.

The pattern of cases in the employment tribunals has shifted radically since the introduction of fees. The headline has been the drop in the number of claims. For example, sex discrimination claims dropped by almost 80 per cent in the 12 months after fees were introduced. Overall, the number of single claims is a quarter of the volume compared with previous years.

But there are other changes which are equally noteworthy:

• It has become clear that the success rate of those claims which are brought has not increased. This gives the lie to the notion that fees would filter out unmeritorious claims
• The trend has been for low value claims to virtually disappear. Those claims which are heard are now more likely to be high value claims, probably because those bringing them are more likely to be able to afford to do so
• A far greater proportion of hearings are now for multi-day discrimination and whistleblowing cases. It is the wages claims, and one day unfair dismissals which have dropped out of the system.
• Remission of issue fees is only granted in a tiny minority of cases 
• Successful claimants cannot always get their fees back from the employer. In particular, this will not happen where the employer is insolvent. This leads to a particular injustice where an employee is obliged to bring a claim against an insolvent employer in order to receive a payment from the Redundancy Payments Office, or the National Insurance Fund.
• The prospect of alternative dispute resolution which was said to be part of the rationale for fees has actually diminished, because employers do not feel any incentive to settle until they have “seen the colour of the claimant’s money” i e whether they can afford to make the claim.

Overall, it is clear that access to justice in the employment tribunals has been severely restricted. It is perhaps worth noting that there is every prospect of the Scottish Parliament abolishing fees when they take over responsibility for employment tribunals.