July 31, 2017

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.

5.00 avg. rating (95% score) - 2 votes
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Glenn Houlihan
Glenn Houlihan is the Deputy Editor of The Badger, Sussex University’s student newspaper. Well, until he tells the Editor he's flying to America next month for his year abroad at UMass Amherst. Currently you’ll find him proofreading for a travel agency whilst nervously checking how England’s middle order are faring against South Africa.
  • Bosun Higgs®

    Well, this is certainly good news for lawyers.

  • Dr Evil

    Having skin in the game shows how determined you are. the supreme court was wrong IMO. This is the problem with the ‘free’ NHS. With no skin in the game patients are lazy, miss appointments and don’t care. If they were charged they would behave differently.

  • Andy

    Exactly. Once someone initiates a case the defendant should be entitled to recover fair costs if the case is withdrawn or dismissed. That would solve the problem. But, I do have grave reservations about the Supreme Court judgement which seems to be too ‘political’ rather than based on the Law.

  • Paul Robson

    The problem was that costs were never awarded to the employer even if the claim was criminally dishonest.

  • Duke_Bouvier

    Whatever the flaws with this specific policy, the reality was that disgruntled employees (say one who has been made redundant) were often advised to put in a Tribunal case however spurious. The cost and time involved in defending a claim is such that it would often make sense for the employer to settle a claim however dubious. If the employer did defend the case then often the employee would withdraw it just before the hearing. Something was and still will be needed to deter such claims.

  • SimonToo

    It has always been the case that the law, like The Ritz, is open to all. Without reading the Supreme Courts judgments in full, it is hard to assess the effect of this decision. On the other hand the hand of Grayling in the introduction of these fees clearly did not help.

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