ET fees deny workers access to justice
A policy briefing by Professor Nicole Busby and Professor Morag McDermont, which was published in July, examines the effects of employment tribunal (ET) fees on workers’ lives and livelihoods one year since their introduction.
About the research
Since July 2013, workers with an employment dispute have had to pay fees to take their case to an ET. As a result, many people can no longer afford to use the tribunal to seek justice in employmentrelated disputes. Between October and December 2013, the number of ET cases lodged fell by 79 per cent compared with the same period in 2012, clearly demonstrating the prohibitive impact that fees are having. A fee waiver scheme for those on low incomes has so far been of little help due to the complexity of the scheme and stringent qualifying conditions.
When workers cannot afford the services of a solicitor to deal with a problem they are facing at work, they will often turn to Citizens Advice Bureaux for assistance. The research project ‘Citizens Advice Bureaux (CAB) and Employment Disputes’ has examined how CAB clients, who often have limited financial, cultural and social resources, pursue their employment problems. The research has uncovered personal stories that reveal the often devastating effects of ET fees on individuals’ lives.
Key findings
•Fees for ET claimants were introduced in response to press reports that a high number of unfounded cases were causing backlogs in the system, costing employers money and preventing job creation. This research has found no evidence to support these claims.
•Fees have reduced access to justice for workers with legitimate complaints across all areas of employment law, including dismissal, discrimination and non-payment of wages.
•Employers’ non-payment of awards made by tribunals and the lack of effective enforcement measures contribute further to the loss of access to justice for workers.
•The imposition of fees and the complex fee waiver claim system lead to a shift of attention away from dispute resolution, as claimants necessarily focus on finding ways to finance their cases and gather information to support their claim.
•Advice agencies offering support and, in some cases, representation to those who cannot afford to pay a solicitor are already severely stretched; finding extra resources to assist with complex fee waiver claims threatens to overwhelm them.
•Even before fees were introduced, workers without representation found ETs to be intimidating and legalistic. The ET system needs overhaul to offer accessible justice.
Policy implications
•Workers’ access to justice must be reinstated. In order to do this, ET fees should be abolished.
•Failure to take action is likely to lead to greater disharmony at work as disputes go unresolved and a culture of bad practice by some employers in the management of employment relations. This should be avoided at all costs.
•Current fee levels are out of step with those payable in other civil courts, such as small claims procedures or the Court of Appeal. At the very least, fee levels must be reviewed as a matter of urgency.
•Although claimants are required to pay fees for bringing a claim, employers who defend claims are not required to pay. This seems anomalous and the balance should be redressed.
•The remission system, intended to assist those on low incomes by reducing or waiving fees, is not working effectively for those most in need. Changes introduced from 30 June 2014 are an improvement but more needs to be done (see page 37 of this issue).
•Extra support is required for some clients in accessing information about fees and fee waiver/reduction. This should be provided free of charge by advice agencies such as CAB which will need to be better resourced through public funding.