Sharp drop in ET claims raises access to justice concerns
Michael O’Donoghue, supervising solicitor at Bradford Law Centre®, writes:
There were 79 per cent fewer employment tribunal (ET) claims in the period from October to December 2013 compared with the same period in 2012, and 75 per cent fewer than in July to September 2013, according to the most recent figures:
Tribunals statistics quarterly: October to December 2013 (Ministry of Justice (MoJ), March 2014).
1Available at: www.gov.uk/government/publications/tribunal-statistics-quarterly-october-to-december-2013. Discrimination claims are currently running at 25.5 per cent of the volume before fees were introduced.
2Equal Opportunities Review, issue 247, April/May 2014, p2. These figures raise serious concerns about access to justice for workers following reductions in funding for advice and assistance in employment law and the introduction of ET fees, and the resulting drop in claims. Clearly, it is unlikely that such a drop is reflective of a period of calm and serenity in industrial relations.
What is responsible for this drop?
Lack of advice
Most of the responsibility for the reduction in ET claims has centred on the introduction of fees. While this is certainly an important factor, there are other contributory reasons that should not be overlooked.
The starting point for all potential claims is the knowledge that a right has been infringed and that if a negotiated resolution fails there is a remedy, As stimulating as employment law undoubtedly is, it is not a widely indulged leisure activity. Therefore, the availability of advice is crucial. There are, after all, in excess of 70 jurisdictions, although in practice many arise infrequently.
The changes introduced from April 2013 by the Legal Services Commission (LSC) (now the Legal Aid Agency (LAA)) in taking employment law out of the scope of legal aid have added to the problems workers have in pursuing claims. The number of Legal Help and certificated cases covering employment and discrimination in 2009/10 was 31,796, in 2012/13, it was 16,148. While discrimination in employment remains in scope, its operation has changed radically. Previously, advice on discrimination law could be sought on a face-to-face basis from a wide range of suppliers (as at May 2012, there were 179 offices franchised with the then LSC for legal aid for employment law), subject to satisfying a means and merits test. Now there are just three sources of help in England and Wales for discrimination advice: they cannot be accessed directly and a prospective client can only be referred through a LAA gateway. Face-to-face advice will only be given in exceptional circumstances. The emphasis is on electronic or postal communication, which can disadvantage low-paid workers and those with lower educational attainment.
The Equality and Human Rights Commission has seen its funding cut from £70 million in 2010 to a basic grant of £17.1 million for ‘core’ functions. Staffing levels have been reduced from 368 in March 2012 to around 185 in 2014. The commission’s grants programme, which funded around 100 organisations to provide advice on discrimination law, has ended and its advice and support services have been privatised. The funding by local authorities of advice agencies has also seen considerable cutbacks with agencies closing and service reductions in many that continue to operate.
ET fees
A further discouraging factor in pursuing a claim is the introduction of fees in the ET in July 2013. This, together with the introduction of a more restricted fee remission scheme, makes it more difficult for claimants to begin an ET claim. The fees are disproportionately high for low-paid workers pursuing modest claims for wages, notice pay and holiday pay. So, prospective claimants who can get advice have to consider whether they can afford to pay the fee, whether they are eligible for a fee remission and, if not eligible, if they do pay and succeed, whether they are likely to recover the award made. The fees in the ET are higher than the fees in the county court. They are payable in two stages: the first fee is payable when starting the claim, and the second fee is a hearing fee if the claim does not settle. The hearing fee is not recoverable from HM Courts and Tribunals Service in an ET claim if the hearing does not go ahead, but may in certain circumstances be recovered in the county court. Anecdotal evidence suggests that cases that would previously be taken in the ET are being pursued in the county court because of the lower fees. However, from 22 April 2014, the fees for claims over £1,501 upwards have increased, in some cases by 81 per cent.
The new fee remission scheme has a capital test of £3,000 per household, for those aged up to 60; it is £16,000 if aged 61 or over. It is therefore possible to have savings of just over £3,000 and be eligible for income support and Legal Help with a discrimination claim, but still have to pay an ET fee. This could lead to taking a risk with a large proportion of a worker’s savings at a time when s/he may still be out of work. Government-commissioned research, reported in November 2013, found that over one-half of claimants (51 per cent) received either part or none of the award made by the ET: 16 per cent received only part of the award and 35 per cent received nothing at all.
3Payment of tribunal awards: 2013 study, available at: www.gov.uk/government/publications/payment-of-employment-tribunal-awards.There is clearly a very serious issue about access to justice for low-paid and vulnerable workers, most of whom are non-unionised. Also, there is the risk that the bad employer will exploit this situation and gain a competitive advantage over the good employer. This state of affairs cries out for change.