Fees were introduced by the coalition government in 2013 with the aims of transferring some of the costs of ETs to users and away from taxpayers, encouraging alternative methods of resolving workplace disputes, and to protect access to justice. This last point has proved to be highly controversial, with a 70% reduction in claims since the fees' introduction.
In June 2015 the government agreed to review whether tribunal fees were meeting the objectives set for them. There was widespread criticism of the current system, particularly its impact on access to justice. This January, after a lengthy delay, the government finally published the results of its review. Those who put in responses were almost completely ignored.
For example, an employee does not receive their weekly wage of £200. A claim for unpaid wages requires employees to pay £390 in fees to the Tribunal Service. If the employee wins their case they are still £190 down. A tribunal has the power to make an employer reimburse the employee but this is not automatic and requires a further application to be made. Employees who have had the award from the tribunal but where the employer has not paid up (an all too common occurrence) are in an even worse position.
The Employment Lawyers' Association (ELA) has generally found that governments are willing to engage with our responses to their consultations on employment law. However, on this occasion there was a total failure by ministers to address these kinds of points – and many others.
The three main parties have pledged in their manifestos to increase workers' rights. The Conservatives have promised to maintain existing rights post-Brexit, to continue the Taylor Review into employment status, to introduce a new right to unpaid time off to care for sick relatives, to extend discrimination protection for those with mental health problems, and take further action to address the gender pay gap and ethnicity pay gap. Labour has proposed comprehensive employment law reform including: giving unions new rights in the workplace, making all existing employment rights 'day one' rights and extending them to workers, banning zero-hours contracts, and ensuring that all existing EU law rights would be preserved following Brexit. The Liberal Democrats' pledges include introducing pay gap reporting in relation to gender, race and sexual orientation; introducing name-blind recruitment in the public sector; continuing the drive for boardroom diversity; and addressing the abuse of zero-hours contracts. They would make flexible working, paternity and shared parental leave 'day one' rights, create an additional month's leave for fathers, and extend free childcare places.
However, all of these pledges are meaningless unless the next government is also serious about access to those rights.
Labour and the Lib Dems have pledged to abolish tribunal fees. Some of us in the ELA agree with this policy. Others disagree and say that fees should be charged for using the ET system. However, there is a consensus across our membership that the current system is creating unacceptable barriers to justice and needs reform if not abolition.
Whichever party forms the next government we would urge them to look at again at the current ET fees system and listen to those who use it. There must be a better way of ensuring access to justice, without placing unreasonable burdens on employers and the taxpayer.
Paul McFarlane is a partner in Weightmans' employment, pensions and immigration team. He also chairs the Employment Lawyers Association’s Legislative and Policy Committee