Professor Nicole Busby, Strathclyde University

If we needed further proof that the Coalition’s policy of charging claimants to bring cases to the Employment Tribunal (ET) posed a serious threat to access to justice in employment disputes, the latest ET statistics published by the Ministry of Justice (MOJ) provide it.

The most recent figures, which cover April to June 2014, show that the downward trend in the number of claims brought, which has been recorded for every quarter since fees were introduced in July 2013, has continued. Single claims have fallen by 70% compared with the same period in 2013, with multiple claims down from 1500 to just 500. Furthermore, the introduction in April 2014 of Acas’s early conciliation scheme has had an impact on the number of claims lodged.

Under the scheme, there is a mandatory requirement that Acas must be notified of any dispute before an ET claim can be made. This is to facilitate efforts to settle the dispute. One effect of this is that cases which do end up with the ET now face a time lag of about a month while Acas has an opportunity to intervene. Another effect is that the statistics for April to June 2014 are not directly comparable with the same period in 2013. Nevertheless, there is still a significant reduction.

Independent research conducted by the Universities of Strathclyde and Bristol has found that the fees regime has made the ET system unaffordable for many individuals experiencing workplace disputes that would amount to viable claims, thus denying access to justice for many. This finding is supported by research conducted by the Citizens Advice Bureau (CAB), the Trades Union Congress (TUC) and by the Law Society of Scotland.

Is there another way of interpreting the data? The Government’s response has been that the reduction in cases is a good thing as it delivers savings to hard working tax payers by reducing the estimated £74 million cost of the pre-fees system (see the statement by Justice Minister Shailesh Vara, 28th July 2014).

The obvious response to this is that the claimants who are now expected to pay fees to have their cases heard are tax payers – presumably hard working ones – or at least were before they were dismissed or driven out of their employment by discriminatory treatment. These individuals are now expected to pay twice to assert what are, after all, their legal rights. And what of the workers who are seeking unpaid wages – often of less value than the fees that they are expected to pay? The financial beneficiaries in such cases are those employers who refuse to pay workers what they are owed.

The other justification which has been given for fees is that they deter claimants from bringing spurious or vexatious claims. This line was advanced by Ministers prior to the introduction of fees (see for example Vince Cable’s speech to the Engineering Employers’ Federation in 2011) and continues to be peddled even in the face of such a drastic decline in claims (see Enterprise Minister Matthew Hancock MP quoted in the Telegraph). The most recent statistics do provide some food for thought in this respect. This is because the time lag that normally occurs between a case entering the system and reaching a full hearing is between 6 and 9 months making it likely that the cases disposed of during the latest quarter were lodged after the introduction of fees. If we accept the (unlikely) hypothesis that the huge reduction in claims is due to the removal of vexatious claims, it would surely follow that those cases which remain in the system have a high likelihood of success.

© Amanda Russell

However, as Richard Dunstan’s analysis available on his Hard Labour blog shows, the introduction of fees has had no significant impact on outcomes:

‘Whilst the proportion of successful claims has increased slightly since the same quarter a year ago, from 13 per cent to 17 per cent, it’s still no higher than in any full year since 2007-08. And the proportion of unsuccessful claims is down, but only marginally so.’

Of course it is important to remember that an unsuccessful claim is by no means always a spurious one as there are many reasons why perfectly viable cases may fail – some of which in themselves represent barriers to access to justice (see David Renton’s struck out blog).

The need for clear and considered adjudication in many employment disputes brings us on to another important point: employment law’s sustainability. In this respect, the fees era has another alarming consequence. The lack of case law emanating from both the ET and the Employment Appeal Tribunal, which has unsurprisingly also recorded a reduction in cases, will have a negative knock-on effect on law’s evolution.

Employment law has always been characterised by its dynamism and ability to develop continuously in line with changes to the socio-economic environment within which it operates. This process, which depends largely on the maintenance of a fair and accessible independent tribunal and court system in which the application and interpretation of law can take place within the context of such changing circumstances, will now stall. The imposition of fees, thus, has a dual negative impact: not only are would-be claimants priced out of the system but the resulting lack of judicial consideration of various types of claims and appeals will lead to the stagnation of employment law.

In his recent speech to the TUC Congress Shadow Business Secretary Chuka Umunna announced that, if elected, the Labour Party will undertake major reforms of the ET system. By acknowledging that the introduction of fees was both ‘unfair’ and ‘unsustainable’, he appeared to accept that the scheme had undermined workers’ access to justice. This is good news and should encourage those within the labour movement. However, as well as applauding Mr Umunna’s pledge to abolish the current system and replace it with a fairer system in which ‘affordability is not a barrier’, it is important to note what he didn’t say.

There was no promise in his speech that Labour plans to repeal the fees and so we can only assume that what is envisaged is a revamp of the current regime, resetting fee rates and/or reworking the remission system by which claimants on low incomes are able to claim a full or partial reduction.

Tinkering around the edges will not reverse the negative effects that fees have had. In short, as long as the fees regime remains in place, the longer-term outlook for workers’ access to justice is very bleak.

This blog was originally posted on the Institute for Employment Rights blog.

You can read an earlier blog and a related policy briefing on this topic.