Guest post: 'Employment tribunals - the most vulnerable have lost their access to justice'
Since the government introduced fees for workers seeking employment tribunals in July, the number of claims made has dropped by 79%.
In this guest post, barrister Natasha Joffe argues that it is the most vulnerable in society who are losing their access to justice - despite assurances that help will be provided for those who cannot afford the fees - and that the drop in cases is not something to be celebrated.
Do read the post and share your own thoughts and stories.
Employment law barrister
Posted on: Thu 03-Apr-14 15:17:12
(34 comments )
Last week the enterprise and skills minister, Matthew Hancock, appeared in front of the Federation of Small Businesses. He did the usual speakery things - he talked about how he grew up ‘in a small business’, he flattered his audience, he quoted Ronald Reagan, he made some ‘jokes' - and then he congratulated himself and his government on the fact that there has been a 79% drop in the number of employment tribunal claims since the government introduced fees to bring these claims last summer.
This week I felt that statistic in action. I was in an employment tribunal outside of London and the waiting rooms were nearly empty. Only two judges were sitting. There was a strange tumbleweedy feel to the place. I have been attending employment tribunals since the days when they were called industrial tribunals and you could smoke in the waiting rooms. I assumed the tribunals themselves would last forever. Maybe I was wrong.
The employment tribunal is of course the place you go if you have been unfairly dismissed. If you have been discriminated against because of your race, sex, age, sexual orientation or religion. Or if your employer simply fails to pay you your salary. It’s also the place you go if you have been made redundant because you are pregnant. Or you have been sexually harassed at work. Or paid less than men doing the same job as you.
Except, it appears, on the basis of that 79% drop, that nearly four out of five people with potential claims can no longer afford to go to the tribunal at all. If you have been discriminated against because you are pregnant, it will cost you £250 just to send in the document making the claim. It will cost you a further £950 to have a hearing. At a time when you have lost your job - or have just spent a number of months living it up on Statutory Maternity Pay - you have to decide whether to blow any savings you might have trying to enforce your maternity rights.
On the basis of that 79% drop, nearly four out of five people with potential claims can no longer afford to go to the tribunal at all. If you have been discriminated against because you are pregnant, it will cost you £250 just to send in the document making the claim. It will cost you a further £950 to have a hearing. At a time when you have lost your job, you have to decide whether to blow any savings you might have trying to enforce your maternity rights.
And all this is against a background where the last full study commissioned suggested that half of all pregnant women suffer some form of disadvantage at work related to maternity and more recent evidence shows that tens of thousands of women report being forced out of their jobs as a result of pregnancy.
Ah - but the government did tell us when introducing the fees that those who cannot afford them can simply apply to have them remitted. Sounds fair enough – those who can afford to pay the fees do, and those who can’t, don’t. Except that nobody who lives in a household with more than £3,000 in savings qualifies for any reduction in the fees at all.
A study commissioned by the TUC suggests that for example, only one in nine disabled workers would qualify for full fee remission and a significant proportion of workers earning only the minimum wage would not qualify for any fee remission. One commentator who has analysed the figures suggests that, since the fees came in, only 4% of individual claimants have received any remission at all.
Yet, to quote Matthew Hancock: 'Our tribunal reforms are working. Jobs are up and the number of cases taken to tribunal is down 80%. The only work being hit by our tribunal reform is the workload of employment lawyers.' So we can all be happy because the only people suffering are lawyers and (apparently) no one likes them anyway.
Except it’s not true.
Since July 2013, thousands of people who would otherwise have done so have not complained about breaches of their employment rights. Worse than that, the fact that very few people can now bring claims at all means that the pressure on employers to comply with employment laws is vastly diminished.
For the 40-odd years during which it was free to bring a claim, the employment tribunal system has shambled along, sometimes getting it right, sometimes not, and no doubt occasionally entertaining claims from the cynical or the deluded. But by and large, the system was doing a power of good by simply being there and being accessible. To the poorest workers, to people deprived of the minimum wage, to women working part-time and being underpaid for doing so. The employment legislation of this government would happily dismantle this system - in its complicated, cobbled-together way, a thing of some beauty, enshrining as it does standards of fairness and non-discrimination in employment relationships.
One could be forgiven for thinking that, in order to keep businesses happy, those in power have deliberately restricted access to justice - and that is truly dispiriting.
So when we read this week that Jenny Willott, the minister for employment relations and consumer affairs, says the government will be reviewing the level of fees (when and how is unclear), we may not be overwhelmed by hope for change and we certainly shouldn't be holding our breath.
By Natasha Joffe
I think the length of time you have to be working before you're entitled to take legal action for certain things is also a disgrace.
Yes, brilliant post. I'm also an employment lawyer. Sure the fees will have discouraged the chancer hoping for a nifty settlement to make them go away quietly. I've seen a few of those in my time. But for every chancer there are dozens of claimants who just won't be able to enforce their rights because of the fee, or who will have taken a lower settlement than before, or who just don't have a voice. There are some really shocking employers out there - some great ones too. But the winners are those poor employers and of course the bean counters. Employment Tribunal reform isn't a sexy issue: the effect of fees is a scandal, and the more people know about it, the better.
Great post - it's typical of this government to charge poorer people to have a voice. If they get in again, who knows how far they'll extend this type of thing. Of course, to someone educated at Oxford or Eton, £250 is small change. It took me 6 months to save up £250 to buy my son's buggy. And I earn a decent wage.
Wow, I knew there were fees but not that they were this high.
Having used the old system myself, I have to say I think the sheer volume of work that anyone trying to claim had to do in terms of question answering, form filling etc and solicitors fees, would put off any 'chancers'. Even with a no win no fee agreement no solicitor would take it without a fair idea you had a decent case and that your potential compensation (which is in reality hardly ever more than a few thousand) would cover their fees. It was never a cheap nor an easy option and anyone that thinks it was and that it encouraged spurious claims and was unfairly biased against business really hasn't got a clue.
Just before my daughter was conceived, after my old boss had found out about my fertility treatment, and after months of poor treatment I got made redundant. In the middle of a grievance meeting with my line manager and HR (literally about half way through), which I had raised after months of her abusing me in the work place and taking tasks off me in order to erode my job.
I had been part of a management team that tried to perform a management buyout in their industry and were unsuccessful. The new line manager was brought in and started to drive out so many people. We had suit after suit being filed, race discrimination, age discrimination...she attacked everyone individually and without anything but prejudice. She finished with one and moved onto the next. It was my turn.
I had no recourse except for the tribunal. Getting a case through successfully with bullying as the cause was rare then and in the end the company settled. I was too sick by the time they called to do anything but settle.
The Industrial Tribunal gave me the chance to fight this big organisation and their unfair ways. It was a horrible time in my life and the Tribunal system was there to help. It was free and though it wasn't as supportive as I thought it would be, it was still a tool I could use, for free, to fight Goliath. The thought of it not being available to other people in my position 14 years later is really sad. I think this is one of those erosions that slips under the radar until it's too late and it's gone. How sad for our society.
It is the same for vulnerable people and their human rights. Legal aid no longer has the funding to take on judicial review. Local authorities are stripping the most vulnerable of their basic human rights-and my MP's office told me that I should be grateful for the support I get and then stopped returning my calls.
It is heart breaking to think of the many people whose rights have been unceremoniously removed and that no one actually cares.
Councils are running roughshod over people and putting people at risk. I was so concerned about what was happening I even contacted the police but it isn't a criminal offence to ignore human rights so the police can't do anything.
We were priced out of going through a tribunal! The reason is a whole other thread but I definitely had a tight case for sexual harassment and gender discrimination, not a chancer.
It makes a joke of our justice system because those who can't afford to cough up the cost of a small car just like that are likely to be exactly the kind of underdog employee who gets taken advantage of. I don't understand why this wouldn't be obvious so the whole thing seems a little corrupt to me.
Thanks for posting, Natasha. Even if all we can do is make people of aware of the reduction in access to justice - and who caused that reduction.
For "the party of law and order", the Tories don't seem very keen on the law being enforced, do they?
UNISON took a judicial review of the fees and has today announced it will seek to run the case in the Court of Appeal.
what an indictment. why mangle a system that worked perfectly well for all levels of society and turn it into something that only the privileged can access. seems an appropriate topic to galvanise mumsnetters for a campaign perhaps?
I run a charity which provide free legal advice and representation.....so are not the stereotypical fat cats. It is heartbreaking to tell people on modest incomes that they have to find £1250 to challenge discrimination; or they cannot access justice.
We are seeing an increase particularly in discrimination against pregnant woman and disabled people. Bad employers will thrive at the expense of the good ones. A race to the bottom.
from the other view though. we are currently fighting s trubunal. the claim is false but its costing so much to defend. we are a small company who can ill afford it.
he scraped in before the fees. if he hadn't we wouldn't be here.
Name changed on this.... Until recently I worked in a very senior role within the third sector. I looked forward to fees being introduced as we had seen a few employees trying to take a chance with convoluted stories to try and make a quick buck. However late last year I had to take a period of sick leave for maternity related illness prior to my child being born. Despite an impeccable 15 year employment record with the same employer prior to this I was given a new manager whilst Off sick. The bullying started immediately, they accused Me of having high levels of sick, not reporting it appropriately, nit following procedures. None of which were true. It was just that my previous manager was lapse and not interested. The tone of the emails were so aggressive I had to state I wanted no contact as the stress was contributing to my illness. I then had to endure wages being withheld (and still owed to this day) and On the day my enhanced maternity pay was due to be received I received an email saying they had reviewed my entitlement following my sick leave and were not going to pay any enhanced pay. I challenged itas a concontractual right and put in a grievance but have now been subjected to many lies (none of which can be backed up) which have seriously tarnished my reputation. I am now in a position where I can no longerreturn to work as I feel so afraid to return to work under this individual. I seriously believe I have been discriminated in this situation but feel powerless to do anything about it. If I quit I will have no income coming in and all our savings have now gone on subsidising what mat pay we should have been receiving. I just can't take a gamble on spending out money to go to a tribunal.
What has surprised me is how quickly a situation can arise that necessitates tribunal intervention. I used to think that tribunals were for trouble making individuals, only now as a person on receiving end of bad practice do I see how fees at a tribunal are so disheartening.
I think this is part of a systematic dismantling of workers' rights, frankly - and one that will leave women particularly disadvantaged given our pesky habits of having babies, being lumbered with disproportionate amounts of childcare, tendency to request flexible working, etc.
And I agree it would make a very good MN campaign - not least for MN's own publicity. Would really take us out of the middle-class-cardies image to be seen to be campaigning for concrete workers' rights.
<joins Hoxty on barricades>
This is shocking. And not exactly widely reported, just as the attack on Legal Aid wasn't. It is a cynical exercise by a government of Bullingdon Club bullies to further undermine the rights of workers, and particularly women.
MN campaign. Absolutely.
(OP under a name change here). One thing which concerned me was how little mainstream coverage this has had. Some really sad and interesting posts. And I will join you on the barricades!
Nothing but a victory for bully bosses and greedy shareholders, these changes. Well, another victory heaven-sent from the Tories.
Excellent post. I know three employees who were able to take unscrupulous employers to tribunals - and won, they definitely weren't chancers, they had genuine grievances upheld by the tribunal. In another two cases the employer backed down at the last minute and settled. They wouldn't have done so without the threat of tribunal. Like so much else that this government has done to the vulnerable they have "sold" it by highlighting the tiny number of people who have abused the system - not seeming to care how much damage is done to those who genuinely need it.
I'm a CAB advisor and we're now seeing people affected by this plus the 2 year qualifying period to bring unfair dismissal claims. So many dodgy employers out there trampling all over employment law and employees unable to do anything about it.
I hadn't actually made that connection with other 'reforms', Verlaine, but I think you are right. Focus on a few chancers or cheats to distract everyone from the effects on the vulnerable.
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