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Structural reforms to employment tribunals could put access to justice further out of reach for employees who need it most
Lord Justice Briggs has set off alarm bells in the world of employment law with his comments on employment tribunals (ETs) in Civil courts structure review: interim report (December 2015), suggesting that they could be absorbed into the civil courts and lose their lay members (p119). It is to be hoped that he has a change of heart when his final report is published, as the reasons why the system of tribunal justice in employment law was founded in 1964 have not gone away. Moreover, it is increasingly the poorest-paid and the least-skilled and -educated workers who are most reliant on the justice system to protect them.
Legal Action believes that the slowdown in the economy and job insecurity have caused growing anxiety over rights at work. From 2010 to 2012, in opinion poll research (Social welfare law: what the public wants from civil legal aid, LAG/The Baring Foundation, March 2012), LAG found that the percentage of the population choosing employment law in their top three priority areas of advice that should be free and publicly funded shifted from 53 per cent to 59 per cent.
The trend was even greater among lower-paid people. DE social class is defined as semi-skilled and unskilled manual occupations and includes unemployed people. While the trend showing an increase of those prioritising employment rights services was reflected across all social classes, it was greatest among the DE group, increasing by 12 percentage points over the two years. For all social classes, employment law was the third-greatest priority after family and housing.
In the mid-1960s, when the industrial tribunal system, as it was then called, was established, over 40 per cent of the working population were in a trade union. By 2014, this had fallen to around one in four (Trade union membership 2014: statistical bulletin, Department for Business, Innovation and Skills, June 2015). The 2014 statistics showed that membership generally was concentrated in the public sector. Only 14 per cent of private sector employees were members compared with over 50 per cent in the public sector. It may seem counterintuitive, but if you are in social class C2 (skilled manual workers) or DE, you are far less likely to be able to call on a trade union to enforce your employment rights. At 37 per cent, middle income earners (those earning between £500 and £999 a week) made up the largest number of trade union members. Only 13 per cent of employees earning less than £250 a week were in a union. Low-paid occupations tended to have the lowest density of union membership (only four per cent in the accommodation and food service industries). Also, the fewer qualifications an employee had, the less likely they were to be a union member. Less than 20 per cent of those with no formal qualifications were in a union, compared with 34 per cent of those with higher education qualifications.
It is increasingly the poorest-paid and the least-skilled and -educated workers who are most reliant on the justice system.
Access to justice in employment rights has suffered in recent years. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 cut legal aid for most employment law cases from April 2013 and many Citizens Advice Bureaux and other not-for-profit advice services have experienced other cuts in grants for specialist employment law services. The biggest blow to employment rights has been the introduction of fees for ETs from July 2013, reducing the number of cases in the system by around two-thirds (Tribunals and gender recognition certificate statistics quarterly: October to December 2015, Ministry of Justice, 10 March 2016).
In its analysis of advice trends published recently (Advice trends: quarterly client statistics of the Citizens Advice service in England and Wales 2015/16 quarter 3 (October–December 2015)), Citizens Advice reported an 84 per cent increase from the previous year in cases regarding unauthorised deduction from wages, and a 114 per cent increase in online page views about pay and entitlements in work. It believes many unscrupulous bosses are simply cheating their employees out of their correct pay. A union official who represents low-paid workers told Legal Action his union just cannot cope with the demand for advice and representation in such cases.
It is preferable to seek to resolve employment disputes, from pay to dismissals, through good internal procedures in the workplace. This has been one of the primary motives behind the development of employment law over the past 50 years. Legal Action believes, though, that the lack of advice and representation for workers, as well as the introduction of tribunal fees, is encouraging systemic law-breaking by many employers, to the detriment of the scrupulous ones.
For laws to work, they have to be underpinned by a justice system that enforces them. Abolishing the fees for ETs and other reforms to make them more accessible are what is needed. Legal Action fears Briggs LJ’s suggestions would have the opposite effect. ■