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Employment tribunal fees are a tax on justice

Employment tribunal fees are a tax on justice; Labour's National Policy Forum should commit to abolishing them.

Almost a year after their introduction, employment tribunal fees have seen the number of claims fall dramatically. Photo: Getty

Over the next three days, representatives from across our party will gather in Milton Keynes for one of the most important meetings Labour will have ahead of the general election. The agenda for our National Policy Forum meeting is packed and hopes for bold commitments and radical policy are high.  Whilst there will be many important issues discussed I wanted to set out why I think colleagues should support the amendment I’m putting forward to the Work & Business Policy Document which would commit a new Labour government to abolishing employment tribunal fees.

There have been many attacks on workers’ rights under this government – some receiving more press coverage than others.  It’s absolutely right that a light has been shone on the use of zero hour contracts and the living wage has moved up the national agenda.  But we also need to talk about the quality of life for those in work and about those who suffer injustice at work.

Employment tribunal fees are a deeply cynical ideological policy designed to deny workers justice and place additional burdens on trade unions, all the evidence points to that being the case.

Almost a year after their introduction employment tribunal fees have seen the number of claims fall at a dramatic rate.  In the months October to December 2013 the total number of claims fell by 79 per cent compared to the same quarter the previous year.  In the months January to March 2014 the total number of claims fell by 81 per cent compared to the same quarter the previous year.

It is the most vulnerable who are being hit hardest by this tax on justice. Within those figures it is equality based claims that have fallen most drastically. In the months January to March 2014 claims for equal pay fell by 84%, claims for sex discrimination fell by 81 per cent, and claims under the Working Time Directive fell by 90 per cent.

The fees are high – up to £1200 in total for an unfair dismissal claim – and the fee system is both complex and harsh.  If for example you reached terms of settlement with an employer the day before the hearing fee was due and your ACAS conciliator wasn’t in the office to turn the agreement around before the fee deadline you’d still have to pay it just to keep the case "live".  That’s £900+ for some claims.  For an individual who isn’t supported by a trade union, who has already agreed terms of settlement, that’s a huge outlay.  For trade unions – most of whom have now said they will pay fees where they believe the member’s claim has a reasonable prospect of success, it’s a massive new financial burden.

The Tories will say that this policy was to weed out vexatious (or malicious) claims.  The truth is anything but.  Employment tribunals already had the power to strike out or award costs to parties taking vexatious claims.  What has actually happened is that the poor and the unrepresented have been taxed out of justice and many more employees with legitimate concerns about their working conditions are leaving their employment via confidential settlement agreements.

There are no figures for the number of settlement agreements being signed off, but any trade unionist will tell you of their exorbitant increase under this government.  Why?  Because the Tories also introduced ‘protected conversations’ – where an employer can take you to one side, talk through your failings or concerns, tell you how difficult life will be if you pursue them and ask you to leave with a bit of money.  As long as they refer to that as a ‘protected conversation’ you will not be able to refer to it in any future litigation.

The vulnerable and the poor are most susceptible to that sort of pressure.  If you’ve been off work with stress and depression, fearful of what you might face on your return and feeling the pinch in your wallet it can seem like quite an attractive option in the short term.  But it doesn’t provide justice.  It doesn’t provide closure.  And an employer who has broken the law gets no comeback, no wrap on the knuckles or negative press as a result, because it’s all neatly wrapped up in a confidentiality clause.

We’re storing up problems both in terms of the impact on industry and the mental health of those at work.  The government talk of ‘mandating’ treatment for those claiming benefits due to mental ill-health.  There may not be so many of them if those leaving or moving employment were not so damaged by their experiences at work.

Our excellent leader in Scotland, Johann Lamont, has already made the commitment that if the No campaign wins in September and Scottish Labour is returned to government in Holyrood at the next Scottish Parliamentary elections, that administration would abolish tribunal fees.  The UK needs to follow Scotland’s lead and that’s why I’m calling on my colleagues at this weekend’s NPF to back my amendment and commit us to abolishing employment tribunal fees.  It won’t cost us anything and it should be a no brainer for a party such as Labour that is committed to social justice.

Johanna Baxter is a Constituency Labour Party (CLP) representative on Labour's National Executive Committee, a CLP Secretary and full-time trade union official

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