Six Tory myths about employment tribunal fees

Since yesterday morning, if your boss sexually harasses you, or sacks you for the colour of your skin, you will have fork out an eye-watering £1200 to have your case heard before an employment tribunal.

Ben Moxham is the senior equality Policy Officer in the TUC’s Equality and Employment Rights Department

Since yesterday morning, if your boss sexually harasses you, or sacks you for the colour of your skin, you will have fork out an eye-watering £1200 to have your case heard before an employment tribunal.

Supporters of the fees have been peddling a series of myths to justify this extreme form of credit card justice. Let’s take them one by one.

Myth 1: It’s not fair for the taxpayer to pay for employment tribunals

Justice minister Helen Grant said: “It is not fair on the taxpayer to foot the entire £74m bill for people to escalate workplace disputes to a tribunal.”

British governments have never charged tribunal fees – until this week – for a very good reason: it prices ordinary people out of justice. And these ordinary people are taxpayers too. Should they get a compensation payout, part of that may be taxed as well.

But it’s not thrift for taxpayers driving this policy. If it was, then we’d see these hefty fees introduced into all other parts of the justice system. We aren’t.

Instead this is principally another measure making it easier to sack people. These fees come on top of the government adding another year to the qualifying period for unfair dismissal last year. So the  nearly 3 million employees with less than two years of service could be sacked on a whim and can do nothing about it.

Myth 2: The number of Employment Tribunal claims have sky rocketed in recent years

The BBC stated that “The number of tribunal claims rose by 81 per cent between 2001 and 2011…”.

But less than half of the claims the Beeb is quoting are individual cases. This is because these figures are heavily distorted by thousands of claims bundled up into a series of specific cases on equal pay (mostly public sector) and working time claims in the airline industry.

Instead it’s far better to compare like with like. So back in 1998/99, there were 37,034 unfair dismissal claims. There were 43,956 in 2012/13. This is a surprisingly low number, given that UK economy has grown faster than that since 1998 and employers have been shedding staff at much higher levels since the GFC. But perhaps understandable given the new restrictions on unfair dismissal claims (see myth 1).

Myth 3: Fees will be waived for those who cannot afford them

The government’s fee remission scheme is mean-spirited and complicated, and will leave out too many ordinary people. For example, if you or your partner has savings of £3000 or more, then you still have to pay fees. That punishes hard saving, low paid people, particularly older workers.

Your eligibility for remission of fees is also based on your household income, not your personal income. By our analysis, a substantial number of people on the minimum wage will have to pay full fees because their partners earn even just a modest income.

Finally, the TUC strongly opposes the use of household income because we don’t think that a woman’s capacity to enforce her individual rights should depend on her partner’s income.

Myth 4: Fees will weed out weak claims

The CBI welcomes the fees, saying they are a good way of “weeding out weak claims”.

But employers can already apply to the tribunal to strike out vexatious claims. Instead – and to continue with their gardening metaphor – these fees are like using napalm to get rid of a few snails that should have already been removed by other means.

What these eye-watering fees will do is deter genuine victims. Let me illustrate: a landmark study of mothers returning to work after taking maternity leave showed that nearly half of them said that they had experienced discrimination at work. Yet less than 1 in 30 of them took their cases to an employment tribunal.

Why? They lacked the confidence, knowledge, or money to take a claim. Most of all, they were fearful. Fees will make these barriers to justice even higher.

Myth 5: Less tribunal claims will be good for business confidence and good for growth

According to the CBI, “Fear of the costs of fighting a tribunal – even when you are in the right – is a massive confidence killer”.

Britain’s employers are less panic-stricken. A survey published in the Mirror today shows that less than one in three bosses think the fees will be positive for their business. A far bigger number – nearly half – think that fees will deter genuine claims. Similarly, a BIS small business survey from August 2012 showed that only six percent of small business listed “regulations” as their main obstacle to success.

The correlation between employment regulation and growth is even weaker. Britain has the 3rd lowest levels of employment protection in the OECD, yet our economy has been intensive care for years. Economies with stronger employment protections have generally performed better. Indeed, there’s a good argument that fees are another measure making jobs in Britain more insecure. As damaged consumer confidence shows, insecure workers with their shrinking pay packets are less likely to spend money on the high street.

Myth 6: Tweeting and blogging can stop this serious erosion of your rights at work

Sorry folks but it’s just not enough. So consider joining a union if you haven’t already, and adding your voice to ours.

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4 Responses to “Six Tory myths about employment tribunal fees”

  1. Dick Muskett

    The article accurately blew holes in the myths that are peddled about Employment Tribunal cases but the writer missed one key point that has provided the ammunition on costs that the Tories wanted. When Industrial Tribunals (as they were then) were established, the point was that they should be lay bodies, easy for workers to access and equally easy for employers to defend their position. Workers represented themselves, were helped by a colleague or a “Mackenzie friend”, or most often, by their local trade union representative. As a union rep back in the early 70’s I represented many people (and at Social Security claims hearings too) and like other colleagues, had a good track record of successes. Then gradually the lawyers noticed the potential for nice little earners in the work, and now it is the norm for both sides to be assured that they need solicitors and barristers. Costs have escalated, the outcome too often depends on some loquacious brief on sky high fees and many employers don’t even bother to defend cases, good or otherwise, but just offer a settlement, complete with a Compromise Agreement (that of course needs to be written by a lawyer. Time maybe to re-jig the Tribunal system and try to restore the principl of easy access with lay representation only?

  2. blarg1987

    It is interesting to note on point 3, that if I ow the tax man money and am unable to pay, then the tax affairs are levied against me not the family income. Does the employment tribunal costs now set a precedent for things such as tax affairs in future?

  3. TUCEquality

    A good point worth considering. The government estimates that claimants spend on average £905 on legal fees taking a discrimination case. Employers spend £2,956. Putting aside the inequality of this – how could costs be reduced? I suspect claimants are paying much less if they are union members. For employers, there is nothing stopping them from getting more cost effective representation. Presumably they are paying more than three times as much as claimants because they feel they can.

  4. Micklikeariot

    The fee will not put off claimants. Essentially, if you want to win a tribunal you need a lawyer. They cost money so you need cash anyway. This fee won’t therefore put you off as you will get the cash back if you win. The other option is a no-win-no-fee lawyer. They will pay this fee for you. Where this system is good is that a no-win-no-fee lawyer will be less likely to take on your case if they think you will not win. If they don’t think you’ll win, it’s probably because you have no case. Therefore this is a good thing.

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