Abolition of employment tribunal fees alone is not enough to restore justice in the workplace
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Marc Bloomfield
After the abolition of fees for bringing cases in the employment tribunals (ETs) on 26 July 2017, new figures from the Ministry of Justice (MoJ) confirm that the trend in the increase in claims is well established. Much needs to be done, though, from investment in the tribunal service to law reform, to improve the take-up of workplace rights.
R (Unison) v Lord Chancellor [2017] UKSC 51 effectively abolished ET fees, introduced in 2013.1It also has wider implications for access to justice policy: see April 2018 Legal Action 3. In the quarter after the fees were removed, there was a leap in single ET claims, which are mainly made up of unfair dismissal and illegal deductions from wages cases (the consensus is the number of single claims is a better indication of overall trends than multiple claims). LAG believes some of this initial increase was driven by employees in multiple equal pay claim cases having to issue single claims instead of including them on the same application.2Farmah and others v Birmingham City Council and other appeals UKEAT/0286/15/JOJ, UKEAT/0289/15/JOJ, UKEAT/0009/16/JOJ, UKEAT/0059/16/DM and UKEAT/0227/16, 20 June 2017. See also April 2018 Legal Action 5. The latest figures on the number of new claims show that the upward trend is well established and cannot be attributed to this.
According to the latest figures from the MoJ (Tribunals and gender recognition statistics quarterly: January to March 2018 (provisional), 14 June 2018), the number of single claims in January–March 2018 was 9,252, a 118 per cent increase on the comparable quarter in the previous year. The MoJ’s statisticians point out that single claims prior to July 2017 were running at around 4,300 per quarter.
In June last year, the president of ETs for England and Wales, Judge Brian Doyle, spoke out publicly about his concerns regarding the lack of recruitment by the MoJ to replace salaried ET judges, who were retiring at a rate of around five or six a year.3National employment tribunal user group minutes, June 2017, published 13 October 2017. He said the position was similar with fee-paid judges and non-legal members. Post-Unison, it appears his message got through, as after a recruitment freeze lasting over five years, he recently announced a recruitment process to fill 54 full-time equivalent judicial vacancies across the 10 ET regions (‘Could you be an employment judge?’, Courts and Tribunals Judiciary, 24 May 2018).
One of the other consequences of the Unison judgment was the need to introduce a refund scheme for applicants who had paid the fees. In the statistics quarterly, the MoJ reports that, so far, around 7,700 refunds have been made with a total value of almost £6,555,600. This is a long way short of the estimated £33m in refunds that are due, and clearly more needs to be done to promote the refund service. The government (perhaps not surprisingly) is also silent on what to do about applications from employees who were deterred from bringing a claim because of the fees.
Enquiries on employment law issues make up the fourth-largest category of work for Citizens Advice offices. Over the 12 months to May 2018, they dealt with 352,617 employment law issues, with the largest (70,466 enquiries) being on pay and entitlements, followed by dismissal (51,942 enquiries). Legal aid and other cuts to advice services such as Citizens Advice have reduced the availability of specialist help on employment law.
All employment law cases, apart from those concerning discrimination, were cut from the scope of legal aid after April 2013. The solicitor firms that specialise in employee work tend to act for trade unions, but union members make up a small minority of the workforce. Only 13.5 per cent of workers in the private sector are unionised and there is a concentration of membership in the professions (37.9 per cent of trade union members are in professional occupations, but only 20.8 per cent of all UK employees are in those positions; Trade union membership 2017 statistical bulletin, Department for Business, Energy and Industrial Strategy, 31 May 2018). It is, however, in the casual, low-paid and low-skilled section of the workforce that disputes over employment rights are more likely to arise.
An increase in the availability of advice and representation is needed to help employees enforce their rights and to provide a deterrent to employers not to break the law, but this can only be a partial solution. Over recent years, the trade unions and individual workers have successfully taken a number of cases challenging employers in the gig economy. Judgments such as that in Pimlico Plumbers Ltd and another v Smith [2018] UKSC 29 have been described as ‘landmarks’ for workers’ rights. I’m not so convinced.
The law on determining if someone is a self-employed contractor, worker or employee is complex. An ET has to make findings of fact on a range of issues, including the degree of control the company exercises over the person, to determine the category into which they fall. Recruiting a few more ET judges goes nowhere near meeting the potential demand for the thousands of people in the gig economy who have an ambiguous employment status.
The government needs to heed the findings of Good work: the Taylor review of modern working practices (July 2017). Matthew Taylor called for new legislation to provide a clearer statement of the tests to determine employment status. He also called for greater consistency of taxation across the different types of work. In response to the report (Good work: a response to the Taylor review of modern working practices, February 2018), the government did announce some measures, including asking the Low Pay Commission to consider a higher minimum wage for people on zero-hours contracts, but it ducked the issue of law reform around employment status. LAG believes the current law is unfit for purpose, and the lack of availability of advice and representation on employment rights allows bad employers to get away with ignoring what protection there is for employees.
 
1     It also has wider implications for access to justice policy: see April 2018 Legal Action 3. »
2     Farmah and others v Birmingham City Council and other appeals UKEAT/0286/15/JOJ, UKEAT/0289/15/JOJ, UKEAT/0009/16/JOJ, UKEAT/0059/16/DM and UKEAT/0227/16, 20 June 2017. See also April 2018 Legal Action 5. »
3     National employment tribunal user group minutes, June 2017, published 13 October 2017. »

About the author(s)

Steve Hynes
Steve Hynes is director of LAG. He is a well-known commentator in the written and broadcast media on legal aid and access to justice issues.