Huge changes to the Employment Tribunal system and access to justice by ordinary employees.

At the Suffolk HR Forum meeting on 11 September Members looked at the changing Tribunal landscape and all the barriers being placed in the way of employees who want to bring a claim. Many of these changes are already in force, like the £250 fee that most employees will have to pay to start a claim for unfair dismissal and the further £950 payable when the a hearing date is set. Lower income claimants can apply for exemption from the fees, but will have to be on benefit or fill in a complicated means form and jump through hoops be able to avoid fees.

Even when the fees are paid and the claim is made, a Judge will decide whether the claim is hopeless or not and may throw out a claim that is not properly made or unlikely to succeed. If the claim does carry on to a hearing in the Tribunal then it may well be heard and decided on by a single Judge, who is a professional lawyer; and not three people as at present, two of whom are lay people who usually bring to their judgement a lot of common sense and a practical background in the real working world. More changes are planned for next year, when a claim will not be accepted at all unless the employee has first applied to ACAS for conciliation – with the aim of course that the matter gets sorted put and a tribunal claim never starts.

We have come a long way from the original idea of a free, simple, informal Tribunal process under which an employee could ask for a review of the way their employer had treated them and after a straightforward process a decision was made about the rights and wrongs. The complications, costs and numerous barriers may well deter employees who really have been mistreated and had their legal rights ignored, and so protect those employers who are willing to behave badly.

Legal protection and justice is only as good as the opportunity of the weakest to enforce it. Most employment rights are entirely fair and sensible in a civilised society and stable economy, and the vast majority of us would agree that the vast majority of rights should exist. It is not in the interests of anyone to put barriers in the way of enforcing those rights where they have been broken. When the barriers are financial ones the effect must be that there is one law for the rich and one for the fairly poor. For those employees who try it on with empty claims, there was already the chance to throw out or deter them anyway by the risks of costs against them. Justice and the level playing field of availability is a measure of a legal system and the society within which it operates. The changes made are very clearly not about deterring weak claims, but about keeping as many claims as possible out of the Tribunal so as to save the considerable costs for The Ministry of Justice.

Ironically perhaps, it may be that the barriers will strengthen the influence of the Trades Unions, some of whom have already said that they will pay the Tribunal fees of members. This may not be quite the outcome that the Government wished, but whenever barriers are put in the way of justice there are inevitably less controlled consequences.

The Industrial Tribunal, now Employment Tribunal, was set up to support the rights of the ordinary employee. The 2013/14 changes are the greatest regime change in the Tribunal’s history. The effects on ordinary employees will be worth watching out for, especially for those of us interested in the universal availability of justice.

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