From the TUC

Employment Tribunal? That will be £100 please

01 Oct 2010, by in Working Life

Watch out at next week’s Conservative conference for news of changes to the Employment Tribunal system. These are likely to include introducing charges for employees taking claims. This is a response to employer lobbying for the Government to “do something” to reduce the number of cases going to the Tribunals. Treating employees better might be the most productive starting point but no, they would rather make it much more difficult for those who have been sacked, or discriminated against to have their case heard.

Let’s start at the beginning though. Something goes wrong at work. There is a dispute between an employee and their employer. If there is a union recognised the chances are that the matter will be resolved with union help and no need for litigation. There are far fewer Employment Tribunal cases involving unionised workplaces.

Where there is no union it may be harder to have the matter resolved at work, and certainly if the employee has been dismissed it is too late. The next stage is to go to the Employment Tribunal, or to seek an out of court settlement. This is where ACAS comes into its own, with an automatic offer to intervene and provide conciliation. This often resolves the matter, or at least allows the employee to be compensated when they have been wrongly treated. If not, then it has to be the Employment Tribunal. Very few employees actually want to go to the Tribunal, but if that is what it takes, then they have a right to do so.

To introduce a charge would be an unacceptable obstacle to getting access to justice. It would hit the low paid and the unemployed particularly hard. Even if there were to be a waiver for unemployed claimants the business lobby is also demanding a much more aggressive costs regime to frighten unrepresented employees away.

If those two deterrents do not work they want tougher measures to weed out “weak” and “vexatious” claims. They are conveniently forgetting that there is already a process for dealing with the latter. The former is dangerous; who decides whether or not a claim is “weak”? That is what the Tribunal is for; they already have preliminary procedures that discourage weak claims.

However, they do not, and should not have powers to actually stop them, unless they fail to clear some straightforward legal threshold such as not being in their job long enough to make a particular claim.

 But even in what look like clear cut cases of ineligibility, there may be room for argument. The full Tribunal may be needed to determine whether or not they have the qualifying length of service, or whatever the prerequisite may be.

Employment Tribunal statistics are misleading; they count big multiple claims as a large number of individual cases.  This means that where a union wants to challenge a pay grading system on equality grounds they have to take many individual claims, rather than a representative claim on behalf of a group of employees.

This distorts the figures. What is basically a single argument – is this grading system legal? – gets counted multiple times.  The answer to that is to start allowing representative claims.  This odd way of collecting statistics also means that business lobby arguments are based on a false premise. The numbers of claims are a very small percentage of the number of people in work. It would be more sensible to ask why there are so few claims, given the likely level of abuse at work.

The TUC is an enthusiastic champion of workplace dispute resolution – most effectively done where there is a recognised union. Where there is not, then ACAS must be given sufficient resources to provide solutions out of court where possible – and to give neutral advice to both parties.

We will vigorously resist any attempts to restrict access to justice, while working to promote workplace dispute resolution. In particular we will work with Citizen’s Advice and other consumer bodies to resist any attempt to restrict justice to those who can afford to pay.