After the gestation period of an elephant, the Government Review of the impact of the fees for Employment Tribunal cases finally emerged squalling into the daylight earlier this month. Weighing in at a healthy 100 pages and with a foreword by proud father Justice Minister Sir Oliver Heald, the Review takes a detailed look at the effect which Tribunal fees have had upon claimants and the number and nature of Tribunal claims. It has more statistics than Wisden’s and is not a particularly riveting read, in all honesty, but the patient peruser can pan a couple of nuggets out of it:
- By some trick of mathematics which is not explained, the Government claims that financial receipts from the fee regime (approximately £8-9million per year) have met its original expectations but that the fall in claim numbers was sharply greater than anticipated. So many fewer claims = the same fees, somehow.
- As everyone told the Government at the time, the fees regime has had no impact at all on the bringing of cases which are weak, speculative or malicious – indeed, success rates for claimants appear to have gone down since 2013. It is denied that this was a “formal” objective of the Government at the time, though it was unquestionably a hoped-for by-product.
- The Report notes with pleasure the increased use of Acas following the introduction of fees, glossing over the twin facts that (i) going to Acas is now mandatory as a prelude to a claim, and (ii) despite the implicit suggestion of joined-up thinking in the Report, compulsory early conciliation and the introduction of fees were actually two completely separate initiatives, related only in their desire to reduce the burden of the Tribunal system on the Treasury.
- Despite the claims of certain mothers’ rights bodies, there is no evidence that the introduction of fees acted to reduce maternity discrimination claims to any greater extent than the other discrimination jurisdictions, so no specific provision is to be made for them.
- It is accepted that the introduction of fees seems to have prejudiced processors of some protected characteristics disproportionately, but the Government says in the Review that it considers any indirectly discriminatory effect to be amply justified by the fees’ achievement of its “legitimate aims” – passing part of the costs of the Tribunal system to its users, encouraging ADR and not deterring access to justice.
- On that score, some interesting semantics in the Report – in particular, the repeated acceptance that fees deter the bringing of claims (and obviously to a much greater extent that the Government anticipated) but no acceptance at all that they prevent Where deter crosses over into prevent is not clear, but the Government declines to admit that anyone has been unable to bring a claim because they could genuinely not afford to do so. Where would-be Tribunal claimants have cited the fees as a reason for not going ahead, the Review indicates that this is either because they were not aware of or did not understand the old fee remission scheme or (this probably sounds better at Tory HQ than it looks in print) as a result of their choosing to spend their money on “non-essentials” instead.
- Deplorably, the sums deemed to be at the disposal of the claimant for fee remission purposes still include his redundancy and notice entitlements, so dramatically limiting the number of possible fee remission claims. The Review says that it is right that employees should “use their savings and capital“, paying no heed to the fact that much of that capital (notice pay) is simply an advanced payment of income they will no longer have. The mere fact of your being dismissed can therefore disqualify you from the help with fees necessary to enable you to contest it.
So all in all, the fees have been a riotous success, apparently. Without prejudice to that, obviously, remedial measures intended as a result of the Review include the removal of fees for claims out of the Redundancy Fund and an increase in the qualifying income threshold of about £165 per month gross. This still means that if you are doing a full week at or above the national minimum wage, hard luck.