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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"Labour are as pro-Brexit as the Tories": what do Sinn Fein's MPs really want from Westminster?

Its seven MPs are much less sympathetic to Corbyn's party than popularly imagined, and won't ever take their seats.

Should the Conservative minority government fall, what is Jeremy Corbyn’s route to power? The counterfactual as popularly understood goes like this: Corbyn would pick up the phone to his old pal Gerry Adams and convince Sinn Fein’s seven MPs to abandon the habit of a century and take their seats.

There are countless reasons why this would never happen, most of them obvious. One is more surprising. Despite Corbyn’s longstanding links with the republican cause, the Labour party is not all that popular among a new intake, which is preoccupied with one thing above all else: Brexit.

No wonder. Sinn Fein’s long game is an all-Ireland one, and the party believe the UK’s departure from the EU will hasten reunification. In the meantime, however, its priority is a Brexit deal that gives Northern Ireland – where 56 per cent of voters backed remain – designated status within the EU.

Pioneered by the moderate nationalist Social Democratic and Labour Party as an antidote to Brexit, designated status would allow the six counties in the North to continue to enjoy the EU’s four freedoms. But the idea is anathema to unionists and the UK government, and Sinn Fein sees little evidence that the Westminster establishment will make it work – not even Labour.

“They are as pro-Brexit as the Conservatives are,” says Mid Ulster MP Francie Molloy. “We’re anti-Brexit. We want to see the right of the people in the North who voted to remain in Europe respected.”

Simmering resentment over what the party perceives to have been broken promises on Tony Blair’s part – especially over legal protection for the Irish language, a key stumbling block obstructing the resumption of power-sharing – makes the already implausible deal even less likely.

“The Irish language act was something that Blair agreed to,” says Molloy. “So when people talk about us taking our seats, they don’t realise we would be backing a Labour government that wouldn’t be living up to its commitments either, and would be just as pro-Brexit as the Conservatives are."

That criticism may well surprise a lay audience whose working assumption is that Adams and Corbyn work hand in glove. But it is perhaps the best illustration of Sinn Fein’s parliamentary priorities: its seven MPs will not in any circumstances take their seats but use their Westminster presence to lobby ministers and MPs of all stripes while running constituency offices at home (they are unsalaried, but claim expenses).

Crucially, its MPs believe abstentionism strengthens, rather than weakens their negotiating hand: by their logic other parties need not and do not fear them given the fact they do not have voting power.

They will use their leverage to agitate for special status above all else. “Special status is the biggest issue that we are lobbying for,” says Molloy. “We feel that is the best way of securing and retaining EU membership. But if we get a referendum on Irish unity and the people vote for that, then the North will automatically join the EU.”

But that wasn’t always the received wisdom. That assurance was in fact secured by Mark Durkan, the former deputy first minister and SDLP MP beaten by Sinn Fein last week, after an exchange with Brexit secretary David Davis at the leaving the EU select committee. The defeat of the three SDLP MPs – two of them by Sinn Fein – means there will be no Irish nationalist voice in the commons while Brexit is negotiated.

Surely that’s bad news for Northern Irish voters? “I don’t think it is,” says Molloy. “The fact we took two seats off the SDLP this time proves abstentionism works. It shows they didn’t deliver by attending. We have a mandate for abstentionism. The people have now rejected attendance at Westminster, and rejected Westminster itself. We’ve never been tempted to take our seats at all. It is very important we live by our mandate.”

If they did, however, they would cut the Conservatives’ and Democratic Unionist Party’s working majority from 13 to a much more precarious six. But Molloy believes any alliance will be a fundamentally weak one and that all his party need do is wait. “I think it’ll be short-lived,” he says. “Every past arrangement between the British government and unionist parties has always ended in tears.”

But if the DUP get its way – the party has signed a confidence and supply deal which delivers extra cash for Northern Ireland – then it need not. Arlene Foster has spoken of her party’s desire to secure a good deal for the entire country. Unsurprisingly, however, Sinn Fein does not buy the conciliatory rhetoric.

“They’ve never really tried to get a good deal for everybody,” says Michelle Gildernew, who won the hyper-marginal of Fermanagh and South Tyrone back from the Ulster Unionists last week. “The assembly and executive [which Sinn Fein and the DUP ran together] weren’t working for a lot of groups – whether that was the LGBT community, the Irish language community, or women...they might say they’re going to work for everybody, but we’ll judge them by their actions, not their words.”

Molloy agrees, and expresses concern that local politicians won’t be able to scrutinise new spending. “The executive needs to be up and running to implement that, and to ensure a fair distribution. If there’s new money coming into the North, we welcome that, but it has to be done through the executive.”

On current evidence, the call for local ministers to scrutinise the Conservatives’ deal with the DUP is wishful thinking – Northern Ireland has been without an executive since February, when the late Martin McGuinness resigned as deputy first minister and triggered a snap election.

The talks since have been defined by intransigence and sluggishness. James Brokenshire, the Northern Ireland secretary, has had to postpone the talks deadline on four separate occasions, and has been criticised by nationalists for his perceived closeness to the DUP.

The final deadline for the restoration of an executive is 29 June 2017. Sinn Fein has called for Brokenshire to recuse himself in favour of a neutral chair. “His hands are tied now, completely,” says Molloy. “The Conservative party were always questionable on where they stood – they’ve always been unionists. The issue now is whether they can act neutrally as a guarantor to the Good Friday Agreement.”

He believes that question is already settled. “Legally, they have to act to ensure that nothing happens to damage that agreement – but we’ve already breached it through Brexit. There was no consultation. The people of the North voted to remain and it hasn’t been recognised. It totally undermines the consent principle.”

Just how they and Brokenshire interpret that principle – the part of the Good Friday Agreement that specifies the constitutional status of the North can only change by consent of its people – will be key to whether they can achieve their ultimate goal: Irish unity.

Molloy and Gildernew say the fact that 11 of Northern Ireland’s 18 constituencies voted to remain in the EU is enough for Brokenshire to call one within the next five years (though polling consistently shows that a clear majority of the province’s electorate, including a substantial minority of nationalists, would vote to stay in the UK). They are confident they can win, though, failing that, Molloy envisages it as the first in several referenda on unification.

But beneath the optimism lies the knowledge that the British government are unlikely to heed their calls. And, willingly absent from the Westminster chamber, they say the UK government’s discussions about Brexit are illegitimate. They see their real powerbase as elsewhere: in Dublin’s Dail Eireann, where Sinn Fein is the third largest party, and the chancelleries of Europe.

“That’s where most of the negotiation will actually happen,” says Molloy. “The EU27 will make the decisions. They won’t be made in Westminster, because the British have already set out what they’re doing: they’re leaving.”

But with seven MPs already lobbying ministers and a united Ireland unlikely to happen in the immediate future, Sinn Fein itself won’t be disappearing anytime soon.

Patrick Maguire writes about politics and is the 2016 winner of the Anthony Howard Award.

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