The Supreme Court in Westminster (Photo by Leon Neal/Getty Images)
UNISON Supreme Court case shows how tribunal fees price low paid workers out of justice
This week UNISON challenged the government’s employment tribunal fee policy in the Supreme Court. We’ll have to wait a while for the verdict, but when it comes it could have a huge effect on workers’ abilities to enforce their employment rights.
Since July 2013, employment tribunals have charged an up-front fee to workers who want to bring a case against an employer who’s denying their rights at work. People have to pay up to £1,200 to enforce their rights. UNISON’s appeal to the Supreme Court asserts that the government’s decision to demand a fee from anyone taking their employer to court has stopped many thousands of badly treated employees – especially those on low incomes – from getting justice.
If an employer breaks the law, that worker should not be prevented from enforcing their rights just because they can’t afford to. Access to employment tribunals is vital – If you can’t enforce your rights it makes them meaningless. The TUC and the wider trade union movement will be standing in solidarity with UNISON and hoping for an outcome which forces the government to scrap these unfair fees.
In January 2017, the government published the outcomes of a review into the impact of employment tribunal fees. The review acknowledged a number of factors which suggest that the fees regime is preventing people from bringing claims.
- There has been a dramatic 67% fall in the number of cases going to employment tribunal suggesting that fees are acting as a deterrent.
- People are put off from bringing claims where the fee is going to be equivalent to or higher than the remedy sought. For example a worker trying to reclaim unpaid wages of £200, would have to pay a fee of £390. Fees are a major disincentive for those pursuing low value claims, which is having a disproportionate effect on low paid workers.
- In their evidence to the fees review, the Council of Employment Judges for England and Wales reported that some employers had delayed negotiating on claims which, because of the litigation risk, they formally would have settled, in order to see whether the employee would pay the hearing fee.
- The government review signposted the Acas early conciliation evaluation report to estimate that there were 14,000 potential claimants deterred from bringing claims by the fees. This is a significant number but we believe that this is a serious under-estimate. For example, any prospective claimants whom fees had deterred from even starting the process are not in the scope of this Acas evaluation.
- The House of Commons Justice Select Committee found that “that the regime of employment tribunal fees has had a significant adverse impact on access to justice for meritorious claims.”
- People pursuing discrimination claims have been hit disproportionately hard. Comparing the year to June 2013 to September 2014 all sex discrimination complaints fell by 83% whereas the fall in all jurisdictional complaints was 68%. The MoJ’s statistics also reveal a serious drop in other discrimination claims. The table below clearly shows how discrimination claims relating to other protected characteristics have been affected.
“Help with Fees” is next to no help at all
Despite acknowledging the overwhelming evidence showing that people find employment tribunal fees unaffordable, the review did not recommend that tribunal fees should be abolished. The review’s proposed solution is to tweak the existing “Help with Fees” scheme.
The current scheme is inadequate and so are the proposed measures. To qualify for financial support with fees, prospective claimants have to jump over two hurdles. Firstly, they have to show that their household has less than £3k in savings, something that rules out 47% of households, and many lower paid working families who are trying to save for a significant need.
To qualify for full fee remission, prospective claimants will also have to show that their household falls below a gross monthly income threshold. The proposed gross monthly income threshold for a couple with two children is £1900. However, a couple with two children, both working full time, being paid the National Minimum Wage hourly rate would earn approximately £2500 per month if both partners work 40 hours per week. This clearly shows that low paid workers will not benefit from the remission scheme, as they would exceed the threshold by £600.
The positive impact of unions
The introduction of employment tribunal fees has emphasised the importance of being a trade union member. Unions have a strong track record of resolving workplace disputes, meaning that members don’t need to escalate their claims to an employment tribunal to enforce their rights. Unions negotiate with employers to ensure that policies and workplace practices comply with and go beyond minimum legal standards. Unions will also support members’ claims to tribunals where it has not been possible to resolve disputes in the workplace.
Unions are a vital safeguard in the fast growing gig economy. Technological advances have gone hand in hand with employers trying to avoid their legal obligations. Low paid service workers are being categorised as “self-employed” meaning they lose out on key employment protections. If these workers want to challenge their employment status it is necessary to go to an employment tribunal who can determine the real nature of their employment relationship.
A succession of recent cases involving taxi drivers and bike couriers show that unscrupulous employers are flouting the law and preventing workers from receiving key protections such as holiday pay and the National Minimum Wages. These cases were supported by trade unions. The stark reality is that a low paid bicycle courier or taxi driver is likely to be prevented from bringing a claim because of the fee.
The Taylor Review
The TUC and unions have submitted a wide range of evidence to the ongoing Taylor Review, which is tasked with making sure that employment law is fit for purpose as new forms of work emerge.
Any existing or proposed employment rights will be meaningless unless all people who work can enforce their rights at tribunal. It is essential that the Taylor Review makes recommendations to remove the barriers to justice that have been put up because of employment tribunal fees.