What today's introduction of Employment Tribunal Fees really means

As of this morning, Employment Tribunals - set up to provide a proper, impartial forum for the resolution of disputes between employees and employers - are no longer free to access.

The Government's legal aid cuts may have attracted their fair share of criticism, but another reform with potentially huge implications for access to justice quietly kicks in today.

As of this morning, Employment Tribunals - set up to provide a proper, impartial forum for the resolution of disputes between employees and employers - are no longer free to access. If you're unfairly sacked, discriminated against or don't receive wages owed from now on, you'll need to pay an upfront cost or bite your lip.

The Ministry of Justice claims that the £84m (or £74m, depending on which particular Government document you happen to be looking at) cost of running the Employment Tribunals Service is too high. They say it's unfair for taxpayers to foot the bill for workers who choose to "escalate workplace disputes to a tribunal" and argue that "drawn out disputes" can "emotionally damage workers and financially damage businesses".

What this translates to is a fees system compelling claimants (almost always employees or ex-employees) to pay £160 just to begin the process of challenging employers over relatively simple matters like non-payment of wages or statutory redundancy pay.

Should they then want to take the case to a full hearing, they'll need a further £230. If that seems onerous, spare a thought for those challenging unfair dismissal, sexual or racial discrimination in the workplace, or sackings arising from whistle-blowing, who will now have to cough up £250 upfront, with a further £950 due for a day at tribunal.

There's no guarantee either that a claimant will get their fees back, even if they win their case. While the new rules allow tribunals to impose a costs order against a losing party, this is entirely at a judge's discretion, so even if an employee proves that they were, for example, the victim of sexual harassment at work, a good chunk of their compensation awarded could well be swallowed up by fees.

Although the Government's own impact assesment freely concedes that it "cannot rule out... fees may have the effect of deterring some claimants from bringing a claim", it insists that the policy is not designed to reduce claims, only to transfer some of the cost from taxpayers. Responding to criticism that fees might put poor people off seeking redress, the MoJ points to the Civil Fee Remission scheme, whereby low-earners and those in receipt of state benefits such as Jobseekers Allowance can obtain a full or partial waiver of fees for tribunal proceedings.

Yet the MoJ is already planning major reforms to Civil Fee Remission and, while it has yet to respond to the four-week consultation it issued in the spring, proposals already floated include a tougher means test, a reduction in the number of benefits accepted as proof of entitlement to fee remission in line with the Universal Credit reforms and a 66 per cent reduction in the time limit for retrospective remission claims, from six to two months.

While it won't be clear for some months what the what the final reformed remissions system will look like, someone who qualifies for free access to an Employment Tribunal today might not necessarily make the grade come the autumn.

It's easy to raise the spectre of feckless employees cashing in on an overly-generous system. Indeed, the controversial Beecroft report commissioned by the Department for Business, Innovation and Skills and its rabidly "socialist"  Secretary of State Vince Cable, warned of sacked workers with "time on their hands", who view a free employment tribunal "as a no cost option".

Beecroft's report didn't trouble itself with figures - he famously put the cost of red tape to business at a distinctly unscientific "Who knows?" - but here are a few to consider. Since hitting a peak of 236,100 in the wake of financial crash - when presumably there was a sudden spike in chancers with "time on their hands" - the number of claims accepted for consideration by employment tribunals has fallen by a fifth.

Only eight per cent of unfair dismissal claims are successful at hearing, while there was a whopping, er, zero per cent success rate for equal pay claims in 2011-12. Nobody wants British companies to be bogged down with unnecessary costs at a time of economic stagnation, but if this is a system stacked against employers, it's doing a pretty good job of pretending otherwise.

Even the Federation of Small Business, which backs the principle of claimants bearing some of the cost for employment claims, has said it believes that the fee levels introduced today may be too high, while prominent employment lawyers argue that the reforms could actually lead to more litigation because of disputes over fee payment deadlines. 

Meanwhile, the Institute of Employment Rights think tank warns that, when combined with other changes like the legal aid reforms, the doubling of the qualifying period for unfair dismissal to two years, the halving of consultation periods for collective redundancies, fees will add to a climate "in which it is extremely difficult for workers to receive compensation and support if they are treated unfairly by their employer." If you're lucky enough to be in work at the moment, that should worry you.

Judges make their way to the Palace of Westminster. Photo: Getty

Matt Foster is deputy editor of Civil Service World and a former assistant news editor at PoliticsHome.

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A swimming pool and a bleeding toe put my medical competency in doubt

Doctors are used to contending with Google. Sometimes the search engine wins. 

The brutal heatwave affecting southern Europe this summer has become known among locals as “Lucifer”. Having just returned from Italy, I fully understand the nickname. An early excursion caused the beginnings of sunstroke, so we abandoned plans to explore the cultural heritage of the Amalfi region and strayed no further than five metres from the hotel pool for the rest of the week.

The children were delighted, particularly my 12-year-old stepdaughter, Gracie, who proceeded to spend hours at a time playing in the water. Towelling herself after one long session, she noticed something odd.

“What’s happened there?” she asked, holding her foot aloft in front of my face.

I inspected the proffered appendage: on the underside of her big toe was an oblong area of glistening red flesh that looked like a chunk of raw steak.

“Did you injure it?”

She shook her head. “It doesn’t hurt at all.”

I shrugged and said she must have grazed it. She wasn’t convinced, pointing out that she would remember if she had done that. She has great faith in plasters, though, and once it was dressed she forgot all about it. I dismissed it, too, assuming it was one of those things.

By the end of the next day, the pulp on the underside of all of her toes looked the same. As the doctor in the family, I felt under some pressure to come up with an explanation. I made up something about burns from the hot paving slabs around the pool. Gracie didn’t say as much, but her look suggested a dawning scepticism over my claims to hold a medical degree.

The next day, Gracie and her new-found holiday playmate, Eve, abruptly terminated a marathon piggy-in-the-middle session in the pool with Eve’s dad. “Our feet are bleeding,” they announced, somewhat incredulously. Sure enough, bright-red blood was flowing, apparently painlessly, from the bottoms of their big toes.

Doctors are used to contending with Google. Often, what patients discover on the internet causes them undue alarm, and our role is to provide context and reassurance. But not infrequently, people come across information that outstrips our knowledge. On my return from our room with fresh supplies of plasters, my wife looked up from her sun lounger with an air of quiet amusement.

“It’s called ‘pool toe’,” she said, handing me her iPhone. The page she had tracked down described the girls’ situation exactly: friction burns, most commonly seen in children, caused by repetitive hopping about on the abrasive floors of swimming pools. Doctors practising in hot countries must see it all the time. I doubt it presents often to British GPs.

I remained puzzled about the lack of pain. The injuries looked bad, but neither Gracie nor Eve was particularly bothered. Here the internet drew a blank, but I suspect it has to do with the “pruning” of our skin that we’re all familiar with after a soak in the bath. This only occurs over the pulps of our fingers and toes. It was once thought to be caused by water diffusing into skin cells, making them swell, but the truth is far more fascinating.

The wrinkling is an active process, triggered by immersion, in which the blood supply to the pulp regions is switched off, causing the skin there to shrink and pucker. This creates the biological equivalent of tyre treads on our fingers and toes and markedly improves our grip – of great evolutionary advantage when grasping slippery fish in a river, or if trying to maintain balance on slick wet rocks.

The flip side of this is much greater friction, leading to abrasion of the skin through repeated micro-trauma. And the lack of blood flow causes nerves to shut down, depriving us of the pain that would otherwise alert us to the ongoing tissue damage. An adaptation that helped our ancestors hunt in rivers proves considerably less use on a modern summer holiday.

I may not have seen much of the local heritage, but the trip to Italy taught me something new all the same. 

This article first appeared in the 17 August 2017 issue of the New Statesman, Trump goes nuclear