Government's move to reintroduce tribunal fee threatens workers' rights

The government is repeating the mistakes it made in 2013, when it unlawfully introduced employment tribunal fees.  

Following UNISON’s legal challenge, the Supreme Court, in 2017, ruled that employment tribunal fees are unlawful because they price workers out of accessing justice and discriminate against women.  

The government is ignoring the judgment of the Supreme Court, where it established clear principles around the affordability of fees:  

“The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living, the fees cannot be regarded as affordable.” 

Fees are unaffordable

One look at current economic landscape, it's evident that the government's proposal to impose a £55 fee for employment tribunals and the employment appeal tribunal will not be affordable.

Workers are still in the middle of the longest pay squeeze in living memory - with average weekly earnings still £12 lower than they were in 2008, and not expected to get back to that level until 2028.  

Citizens Advice analysis shows that more than 2.1 million households are in a negative budget. That’s 5 million people - including 1.5 million children - who are in households that can’t afford basic essentials and are at risk of being pushed into debt.  

The latest data shows 14.4 million are in poverty, with 7.8 million (54 per cent) of these living in a working household. The number of people in poverty living in a working household has increased by 1.5 million since 2010. 

Government is out of touch

Introducing fees is a clear sign that this government is out of touch with the everyday struggles of working families. 

The government’s own consultation document acknowledges that introducing fees may cause claims to decrease by 20 per cent: 

“Although our intention is not to impact demand through these proposals, income estimates are sensitive to volumes and it is difficult to know how the introduction of a fee, along with other factors, could affect the volume of applications to the ET. Therefore, a reduction of 20% to the volumes has been applied to calculate the lower income estimate.”  

The TUC believes that certain groups of workers will be disproportionately adversely affected by the introduction of fees, meaning the new fees could be discriminatory. For example, pregnant women and new mothers who will struggle even more during a cost-of-living crisis. Charging fees for employment tribunal claims puts the justice system out of reach for women at a time when they are most in need of protection. Lower financial value claims may also be impacted as well. Pregnant workers seeking to enforce their right to paid time off for ante-natal appointments might be dissuaded from bringing a claim when the financial award would be lower than the cost of the fee. 

Instead of repeating its unlawful behaviour the government should address the systemic flaws in our labour market enforcement system: 

• We have a chronically under resourced labour market enforcement system. There are not enough labour market inspectors to proactively enforce employment rights.  
• There are lengthy delays in the employment tribunal system, with some claimants having to wait years to have their case heard. This is particularly problematic for migrant workers who are only in the country on six-month visas. This puts pressure on claimants to abandon claims. 
•  The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) devastated the legal aid system when it came into force on 1 April 2013. People can no longer get help with many employment problems.  
• Lack of enforcement of employment tribunal awards. A study carried out by the Department of Business, Innovation and Skills, shortly before the introduction of fees in 2013, found that only 53 per cent of claimants who were successful before the ET were paid even part of the award prior to taking enforcement action (“Payment of Tribunal Awards”, 2013).  

However, instead of addressing these longstanding issues, the government is proposing to introduce another restriction on working people’s right to access justice.