Government rebuked over Access to Justice
The Supreme Court's unanimous decision to overturn government legislation on mandatory tribunal fees represents a rare tangible victory for Britain's workforce. But is this a fleeting breakthrough, or a concrete indication of future vindication, asks Glenn Houlihan?
A brainchild of the coalition government, the fees were introduced by Chris Grayling, then Lord Chancellor, in July 2013. The policy immediately came under fierce attack from Unions, who argued they constituted the daylight robbery of an indelible worker's right: the pursuit and acquisition of justice.
The government fired back, claiming that the fees ensured only 'real' scenarios would reach arbitration, and that false claimants and weak cases would be deterred by the cost. A price tag was placed upon justice; those who could afford it were allowed to seek settlements. Those who could not were left to suffer in silence.
Unsurprisingly, the number of cases sent to employment tribunals plunged from 7,240 in July 2013 to 1,207 in September of the same year. Two months, 6,033 fewer cases. With the cost of initiating a tribunal – fees ranged between £390 and £1,200 – often eclipsing the scale of disputed wages, it's no wonder that workers felt they had no choice but to keep their heads down and face the increasingly authoritative actions of their employers. For one demographic in particular – women – this amounted to indirect discrimination, for they brought about a higher proportion of cases.
The Supreme Court, in their Reasons for The Judgment summary, succinctly articulated the government's insidious assault on worker's rights:
"The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful and must be quashed."
This 'quashing' will also entail a full refund for those who have paid the fees, with the total bill currently standing at around £32 million. Despite the government's arrogant miscalculation, this rebate will come at the taxpayer's expense. A further vital step is making sure successful claimants are paid in full: in 2013 this figure stood at a woeful 49 per cent.
Whether this victory – lauded by trade unionists and the Labour Party – will act as a precursor for further progression remains to be seen. Although Shadow Justice Secretary Richard Burgon was quick to assert the government should "accept the ruling and consign their immoral Employment Tribunal fees to the dustbin of history", it is impossible to enact change in opposition. Although this was a policy in Labour's 2017 election manifesto, it took a Supreme Court decision – alongside Unison's mobilisation – to repeal the Conservative position. Paralleling events across the Atlantic, litigation is proving a more effective countermeasure to failing government policy than divided political parties.
Other pressing issues, such as zero hours contracts, public sector pay freezes and catastrophic commuter transport must be dealt with before Britain's workers can celebrate meaningful success. Can the Supreme Court act on each of those? The government must be hoping not.
