Access to Justice | Mayo Wynne Baxter
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Access to Justice

In 2013 the Government introduced a fee regime in Employment Tribunals whereby individuals now have to pay a fee if they want to bring a claim against their employer, or, more often than not, their former employer.

Although there is a remission scheme under which individuals can apply for fee exemption, the application process and the qualifying criteria have been criticised as being unduly onerous and complex.

The justification for introducing fees was said to be threefold; to make those using the Tribunal system contribute towards the cost of it, to encourage early settlement and to reduce vexatious claims.

Not only is there an issue fee of either £160 or £250 payable before a claim can even begin, Claimants also have to pay another fee before a trial of either £230 or £950. In total an individual is looking at a potential cost of either £390 or £1200 to pursue a claim.

As most people who want to bring a claim in the Employment Tribunal do so because they have been dismissed, the requirement to pay out a fairly significant amount of money can be prohibitive.

In fact since the introduction of fees the number of Tribunal claims has dropped by around 70% and while the Government’s recent review concluded that the increased use of ACAS pre-claims conciliation has caused or at least greatly contributed to this reduction in claims, it seems more likely that the requirement to pay a fee is what has led to the drop in claims.

Unison have made two applications for a judicial review of employment tribunal fees both of which were dismissed; one by the High Court and then by the Court of Appeal in 2014 but Unison are undeterred and will appear before the Supreme Court next week to argue that the requirement to pay a fee unlawfully restricts UK workers’ access to justice and is in violation of long established principles of law.

Oxford academics, writing in the Modern Law Review reported recently that their research supports the case bought by Unison and notes that, having regard to minimum wage rates, it can cost a worker almost a month’s salary to pursue a Tribunal claim and that this cost is out of proportion to the likely recovery. It also notes that some employers are using the fact of the fee regime to avoid settling cases early in the hopes that the hefty fees will stop Claimant’s continuing.

In particular it seems women are more likely to be adversely effected by the fee regime in that they potentially suffer a double detriment as they are more likely to work part time and/or be paid less but they are also more likely than men to be dismissed for discriminatory reasons relating to gender or pregnancy/maternity.   Put another way, it seems that women are more likely to need the protection of the Tribunal than men are yet women are less likely to be able to afford it.

On 20 June 2016, the House of Commons Justice Committee published a report on the impact of Tribunal (and other) which concluded that a contribution to the cost of operating Tribunals from those who use them is not objectionable in principle but that preserving access to justice must prevail over achieving cost-recovery.

The Committee concluded that the introduction of ET fees has had a significant adverse impact on access to justice for meritorious claims.    The Report makes a number of recommendations for revising the system but whether those will be implemented remains to be seen.  What is clear is that there are other ways of the Government’s stated aims that would have less of an adverse impact on genuine Claimants and on an individual’s inherent right to access to justice.

If the Prime Minister really does back the recommendations of her advisers as to overhauling worker’s rights (www.theguardian.com) and if she truly does support women’s rights (as was widely reported in the press on International Women’s Day earlier this month), then surely a wholesale review of the Tribunal fee regime has to take place as what value is there in having legal rights if one can’t afford to enforce them?

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