Putting a price on justice

A system of justice is only as good as the ability to enforce justice.  Democratically made laws are only as good as the ability to enforce those laws.  Employment legal rights are enforced in the Employment Tribunal.  Can individuals enforce justice in the Tribunal if they have been unfairly dismissed, under paid or discriminated against?  The figures speak for themselves.  Very few can, and you can be sure that those who can are generally those who are better off anyway.

Employment Tribunal fees of up to £1,250 were introduced in July 2013 with obvious motive of saving money to meet cuts.  The reason actually given was seeking to reduce what were said to be ‘frivolous’ claims.  The number of claims has gone off a cliff ever since, even allowing for the small number who got remission of fees because they were very poor.  Is the huge reduction a cause for celebration that ‘frivolous’ claims have been prevented?  (It was usually not hard to get them knocked out or warned off anyway). Or is it clear evidence that justice has not been done for many, many employees who have been unlawfully treated?

Overall, 44,334 claims of all types were made to Tribunals between April and June 2013.  After fees came in, for April to June 2014 the figure was only 8,540 – a fall of 81%.  By way of detail: sex discrimination cases at employment tribunals went from 6,310 to 591 – a 90% fall.  Race discrimination claims are also down 60%, from 1,089 to 422.

Very significantly, the success rate of those who have brought claims has not significantly changed, suggesting that many of the claims put off by fees would have succeeded.  So they were not frivolous and there had been unlawful behaviour by an employer.  The injustice is that the fees barrier prevented enforcement of justice on behalf of the employee concerned and insult was added to injury.

A condition of the Tribunal regime being brought in was a Government undertaking that a review would happen a year after implementation of the policy.  It has not happened.  So Lib Dem Vince Cable has written to the Tory Justice Secretary announcing his own inquiry at the Department of Business.  Even allowing for the dubious motivation of an election campaign, an enquiry is to be welcomed, on behalf of all those who have been badly treated and then unable to enforce their right to justice.

Somewhere the balance has to be struck between the rights of employers and the rights of employees, but that is not done by taking away access to justice in such an imbalanced and draconian way.  Let’s hope the enquiry is completed by the general election on 7 May, as who knows what will happen then!

Frances Barker

Employment Partner