It has been billed as the biggest shake-up in employment law for half a century, and it was the government who shook it up on 29 July. From this date, the coalition announced, people applying to go before an employment tribunal could no longer do so for free.
Staff seeking redress now face a two-stage fee process, which is both expensive and time consuming. But why should taxpayers foot the £74m annual bill for people to "escalate" workplace disputes to a tribunal, asks justice minister Helen Grant.
People, she insists, where they can afford to, must now pay not once but twice: a charge to lodge a claim, then another fee when the case goes to a hearing. Individuals will pay anywhere between £160 and £950, with appeals costing £400 to apply and £1,200 for a full hearing. As well as the two stages, there are two fee levels (see table below).
These are based on the type of claim: disputes on wages and refusals to allow time off, for example, are deemed less costly to deal with and are therefore classed as ‘type A’ claims, attracting a smaller fee. Cases such discrimination and dismissal cost more to run their tribunal course, and these ‘type B’ claims attract higher fees – £950 for a hearing. Groups of claimants pay different fees.
Grant maintains: "It is not fair on the taxpayer to foot the entire bill. But it is in everyone’s interest to avoid drawn-out disputes that emotionally damage workers and financially damage businesses. That’s why we’re encouraging quicker, simpler and cheaper alternatives like mediation."
BPIF legal department head Anne Copley says the federation records about 70 tribunal cases a year, but the true number across all print companies is probably higher. The change is good, she reckons, but only if "intent matches reality in preventing hopeless cases that force employers to defend at high cost, even though they are meritless".
She says: "Generally, members are happy that claimants have to put their money where their mouth is, but it’s a curate’s egg. This change may get rid of a few hopeless cases, but it will take longer than before and thus be a longer wait for employers to know they are in the clear."
It will take longer because from next April all disputes must go through the Advisory, Conciliation and Arbitration Service (Acas) before going to tribunal, says Copley. This, she adds, could double the current timescale to six months. And if no more resources are allocated to Acas or tribunals, it could mire the process even more.
There is another problem. A disgruntled staffer stumping up £950 may insist on that amount on top of any settlement they have in mind, she says. This will immediately push up the total amount of the settlement to the company involved. And this might be a major concern for some, says print recruitment firm Mercury Search & Selection.
Director Dani Novick explains: "As rule of thumb, legal costs associated with preparation and attending a one-day tribunal hearing can be as much as £8,000, so it’s easy to see why some employers settle cases they probably would have won. The introduction of fees won’t totally solve this, but it should deter claimants who are just ‘trying it on’ with nothing to lose."
Fortunately, employment tribunals in print are few. According to Novick, employers rarely take a cavalier attitude to law, and cases generally fall into three categories: a tiny number of employers discriminate; more have genuine grounds for action or make an innocent procedural mistake; a tiny number of employees bring malicious claims because they have nothing to lose.
However, Unison sees potential for malice elsewhere, and is seeking a judicial review of this introduction of fees for the first time since tribunals were created in the 1960s. The review is due in October, and general secretary Dave Prentis insists that "punitive fees for taking a claim to tribunal would give the green light to unscrupulous employers to ride roughshod over already basic workers’ rights".
Unite, meanwhile, which pledged to pay the tribunal costs of its members, says the measures are not only draconian, but make British workers some of the worst protected in the EU. General secretary Len McCluskey accuses the "worker-bashing government" of taking a sledgehammer to workers’ rights in what amounts to a throwback to Victorian times.
"The fees are disproportionate. The median award is only £4,560, with a fifth less than the £1,200 fee. Seeking redress for unfair dismissal and discrimination is a human right, but ministers are putting up insurmountable financial hurdles for working people in pursuit of justice," says McCluskey. "This is not an aid to economic recovery, but a means of keeping working people frightened and insecure."
