The ancient art of fiddling while Rome burns is obviously still flourishing in government, as witness the release last week of a new consultation paper on fees for Employment Tribunal claimants. My colleague Alexander Bradbury has the official line here.
We have been this way before. The ET started charging claim and hearing fees in 2013, to a very mixed press. Employers were broadly unmoved on the grounds that claimants having some financial skin in the game would discourage what they saw as trivial or vexatious claims, i.e. almost all of them. Employees and unions were unimpressed, not for that reason but because there is no means of deterring spurious claims through a fee which does not also deter good-faith applications for small but (for the employee) potentially still very important sums of money. Claim numbers did drop significantly (over 50%) when fees were introduced, but it would take an extraordinarily unreconstructed employer to say that these were only the claims which should never have been brought in the first place. The serious adverse impact on access to justice for the less well-off or in relation to smaller or non-monetary claims could not be seriously disputed, though the government still took the opportunity to try. That fees regime ran until 2017 when the Supreme Court delivered the resounding humiliation of declaring it unlawful and requiring them all to be repaid.
So what has changed now?
Primarily, the size of the fee proposed, down from up to £1200 for a complex discrimination claim to yours for an all-in price of just £55, with offers of help for those unable to afford even that. Where a stands ticket for 90 minutes at Arsenal runs to well over £100, less than half that for a full-day front row seat in the ET of your choice must be seen as something of a bargain. Surely such a number is unobjectionable? Indeed so, but it is that which makes this whole exercise such a transparent piece of political time-wasting all round. The consultation document seeks gamely to find legitimate reasons to justify putting this long-dead topic back on the table, but comes up only with these:
Greater equivalence with users of other parts of the judicial system where fees are payable, it says – but the whole point of the ET system from its introduction in 1964 has been that it allows “the little man” his good-faith day in court without expense and in particular, without exposure to the other side’s costs if he loses. A token £55 actually does nothing to procure any meaningful equivalence with the civil court regime.
It is right that users of a public service should bear some of the cost of it – but that is only true if you do not believe that providing access to justice for all levels within society is a basic duty of the state, as much as operating libraries and emptying the bins. Although I have had my suspicions on occasion, the reality is that almost no-one goes to an ET for fun. It is a “distress purchase” and being required to pay to get yourself out of a hole which you did not put yourself into may be seen as borderline exploitative. This is a tax, no more and no less. There is reference to the ET being able to include the £55 expense in the compensation awarded for unfair dismissal, but there is no right to award expenses in most of the more minor ET claims where that sum is likely to be of the most significance relative to the sum claimed (SRP, unlawful deductions, etc.)
We need the money – that is not exactly what the Consultation says, but it is clearly what it means, not least because of a scarcely–veiled threat that the more the Treasury has to spend on maintaining the ET system, the less money there will be for services elsewhere – cough up or the youth club gets it, in effect.
If this were a meaningful sum, that might be a reasonable argument. However, even on the Consultation paper’s most optimistic estimates, this new fee arrangement would raise just £1.7m in its first full year, a tiny 2% of the £80 million annual costs of the ET system. From that of course must be deducted the expense of the additional staff required to process the fee and in particular, to assess eligibility for an exception from the fee. Each application, sets the consultation document proudly, will be considered on its own individual merits having regard to the individual’s “income, disposable capital, expenditure and other extenuating circumstances”. Then some paid officer of the ET system will have to decide and record whether those circumstances justify a full or only partial exemption, and if so, whether we are talking about 10 percent, 50 percent, 75 percent or something in between, such that the ET is spending significant amounts of time mulling the respective merits of, say, £25 as against £30. The Consultation paper also refers to a mysterious Exceptional Power by which the Lord Chancellor will magically “protect access to justice for those with no disposable means” but provides no explanation of how this works nor of how it could possibly be an efficient use of judicial time or funds to revisit decisions about less than the cost of a City sandwich.
But the saddest part of this Consultation is its desperate attempt to suggest that valuable lessons have been learnt since last time. The new fees won’t be a deterrent to valid claims, the system will be easier and more transparent, it won’t discriminate through higher fees for more complex claims, pleads the Consultation, as if all of these are things which could only properly have been appreciated after the bitter experience of first time round. The reality is that all the defects of the first ET fee regime were not only blindingly obvious in themselves but also expressly shouted out to government from multiple directions at the time. “Disingenuous” does not get close to describing it.
Therefore we have a proposal for Employment Tribunal fees which (i) will have no deterrent effect on vexatious claims; (ii) will add cost, stress and concern to the process for the most vulnerable claimants; and (iii) most irksomely of all, will bring no meaningful financial benefit relative to the costs of operating a necessary and respected part of the UK’s judicial framework. For the Treasury, the £1.7m aspired to here is just lunch money and it ill-behoves this Consultation to seek to make a case to the contrary. In the 2024 Sheer Pointlessness Stakes, this is already one for the winners’ enclosure. The Consultation closes on 25 March so if you also think that the government really ought to have more to do, you still have ample time in which to say so.
Employment Law Worldview