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Hikes in tribunal fees are pricing wronged employees and discrimination victims out of receiving justice
Tribunals adjudicate in a range of private and public law matters. They tend to operate with greater flexibility in their procedures than courts and are generally created by statute to provide an accessible service to resolve disputes. The numbers of cases before tribunals have been falling. LAG fears that an otherwise successful system for upholding civil legal rights is being undermined by policy changes which are increasing injustice.
According to the latest figures from the Ministry of Justice (MoJ) the number of cases outstanding in the tribunal system at the end of last year was 356,400, down a staggering 58 per cent from the previous year. Some of the explanation for this is due to the disposal of a large number of Employment Tribunal (ET) claims brought as multiple cases in a long running battle over the working time directive between the airlines and their employees. However, big falls in single ET claims and cases before the Social Security and the Child Support (SSCS) Tribunal are the main cause behind the falling numbers of cases, and it is changes in government policy which are to blame.
SSCS is the largest jurisdiction for tribunals. The figures reveal a 65 per cent reduction in claims over the last year. This stunning fall was highlighted in the Low Commission’s follow-up report published in March 2015. This blamed a combination of the system of mandatory reconsideration and a backlog of medical assessments, as being the main reasons for the decline in cases being brought to the SSCS Tribunal. Statistics from the DWP reveal that 75 per cent of work capability assessments for new claimants are outstanding after nine months.
LAG believes that there is some evidence that the backlog of medical assessments for benefits claims might be beginning to be tackled after Atos was replaced by the American company Maximus to carry them out. Atos gave up the contract after its reputation and profits were hit due to the controversy around the fitness-for-work testing scheme. Given previous experience of such testing, there is likely to be a high number of decisions which are open to challenge, but the cuts to legal aid and other funding to advice services may well mean that many potential tribunal challenges will never make it into the system. We believe the shortfall in advice for claimants has to be addressed as a matter of urgency by the next government.
‘Cuts to legal aid and other funding to advice services mean many potential tribunal challenges will never make it into the system’
Before July 2013, when fees were introduced to bring an ET claim, the number of new single claims was running at around 4,000 a month. This has now dropped to around 1,500. If a case proceeds to a hearing, the fees amount to £1,200 and this is acting as a huge disincentive for employees to pursue their cases. Discrimination claims seem to have been particularly badly hit, with the statistics revealing a 90 per cent decline in the number of sex discrimination claims.
The fees for ET claims are clearly having a major impact on access to justice and LAG argues that they should be abolished. We do not accept the argument that fees are necessary to discourage frivolous or vexatious claims, as we believe the current rules on this, which have been subject to much revision over the years, are adequate to protect employers.
Since the foundation of the welfare state at the beginning of the last century, tribunals have been established to protect and enforce people’s rights in a range of civil law cases, but changes in policy have choked off redress for many. This needs to change if the current erosion of access to justice in the tribunals system is to be reversed.