The Supreme Court has unanimously allowed Unison’s appeal that the UK’s fee system for individuals enforcing their employment rights via employment tribunals is unlawful. The CIPD welcomes this ruling and has consistently called for a full public consultation to review the fee regime, first introduced in July 2013. We voiced our concerns again in our response to a recent Government consultation on the fee regime, which chose to narrowly focus on the fee remission aspect of the regime. We expressed concern that the key proposal, to raise the gross monthly income threshold for fee remission from £1,085 to £1,250, will not be enough to enable individuals with a genuine case to access the employment tribunal system.
The staggering drop over more than 70% in the number of claims since their introduction suggests that the fee regime has affected some people’s access to justice. It’s inevitable that some perfectly valid claims have been discouraged as a result of the fees. This point is central to the Supreme Court’s judgment, stating that the ‘Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful and must be quashed.’ The ruling goes on to assert that whether or not fees prevent access to justice ‘must be decided according to the likely impact of the fees on behaviour in the real world’, and that access to justice is prevented if someone feels they can’t bring a claim ‘unless he can be virtually certain he will succeed.’
The Court also ruled that the fee system is indirectly discriminatory under the Equality Act 2010 because higher fees are charged for types of claim that include discrimination claims, because a higher proportion of women bring discrimination claims and so are placed at a particular disadvantage.
The fee regime, and the high level of fees charged for some types of claim (£1,200 for a type B claim), has come under consistent criticism from many quarters since 2013. This includes a report by the House of Commons’ Justice Committee in June 2016 that, while the Committee had no objection to the principle of charging fees to court users, it asked the important question ‘what is an acceptable amount to charge, taking into account the need to preserve access to justice?’ It called for major changes to ‘restore an acceptable level of access to the employment tribunals system’.
At the end of 2016, in partnership with law firm Lewis Silkin, the CIPD conducted a survey of 508 employers, representative of the UK economy, on their views and experiences of employment regulation. We asked respondents how they thought the Government should respond to the 70% reduction in claims since the introduction of ET fees. The majority of respondents were in favour of a fundamental change to the current system, with 15% indicating that ET fees should be abolished, 11% agreeing that they should be reduced substantially, and 19% indicating that a single £50 fee should apply to all claims. A third (34% of organisations) said that the present fee system should be left as it is, while just 5% thought that making the system of remission more generous was an effective solution, despite this being the main course of action following the Government’s review.
Our findings also suggest that the huge fall in the number of claims has had a major influence on the behaviour and attitudes of employers and managers. We compared the findings from our current research with those from our 2005 survey on employment regulation, when there was no fee system in place. Although not directly comparable as the sample is different and there could be other variables that come into play, it’s interesting to note that, in our 2017 survey, just 16% reported that the risk of employment tribunal claims has a strong influence on management behaviour; this compares with 51% of employers who reported a strong influence in 2005.
This points to a significant shift in the balance of the employment relationship in many workplaces and we cannot assume that, just because far fewer individuals are seeking formal redress following a dispute, that the level and impact of conflict has improved. Of course, the ideal approach is for the greater use of informal conflict resolution techniques to nip conflict in the bud, and this is strongly advocated by CIPD to its members. However, if not resolved, there is the potential for the conflict arising from individual disputes that are not dealt with via a formal route to adversely affect the wider employment relations climate.
Therefore, our concerns about the potential implications of the Government not so far consulting on a fuller review of the fee system are based not only on individuals’ ability to seek formal redress following an employment dispute, but also on their wider potential impact for employment relations.
