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Tribunal fees plan “a charter for bad employers”

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By Amanda Brodie

The trade union arm of the CIoJ has spoken out strongly against the Government’s planned introduction of up-front fees for claimants at employment tribunals, calling it “a charter for bad employers”.

The Ministry of Justice is consulting on the plans in a move aimed at reducing costs to the taxpayer associated with providing a tribunal service, which at present is free to claimants.

Amanda Brodie, chairman of the Institute’s Professional Practices Board, said the introduction of fees would have the effect of putting off genuine claimants, and of introducing a justice system “which will be used only by those who can afford to pay”.

She told the Ministry of Justice: “The system is already heavily weighted in favour of employers, who often have considerable resources to employ expensive lawyers to fight their cause, while the complainant is either unrepresented, or relying on support from a trade union or similar body. The funds available for legal representation from such bodies are limited.

“The idea of waiving the fee for those on low incomes goes nowhere in terms of making the proposals fairer. Many people in employment will by definition, not be on low incomes, and in any case it will not help the many middle-income claimants who may be looking at using their family savings in order to fund their claim.

She added: “Like the health service, access to justice should be ‘free at the point of need.’ This is a fundamental right and should be safeguarded – it is not a waste of taxpayers’ money, but prudent use of it, as anyone could need the services of a tribunal at any time.”

The Government further claims that the increasing number of employees taking their employers to employment tribunals is weakening the desire of firms to take on more staff, and so stifling the expansion of business.

Ms Brodie said: “This document gives the impression of being a charter for bad employers. Any employer who treats its staff decently and fairly will have nothing to fear from the tribunal system, since it will not have to go there. Any spurious claims can be weeded out at the arbitration stage through ACAS, long before any serious costs are incurred, and any vexatious ones can be dealt with by the court under current rules.

“The fact that the service is used more, is in itself a good reason for retaining it in its present form – it is clearly much needed.”

She told the Ministry: “At the Institute of Journalists we have many years experience in representing our members at employment tribunals. In our experience it is highly unusual for anyone to put themselves through the stress and potential costs of taking an employer to tribunal, unless they feel they have a genuine grievance.

“If this consultation exercise really is about reducing the costs of Employment Tribunal (ET) claims, there should be more emphasis on conciliation and any party who does not genuinely enter this process should risk losing their case. If the case is weak, vexatious, or brought to the court without any great merit, courts should be firmer in striking out the claim – this can be achieved under the present rules.

“As for fees, the court already has the right to apply them. Let them exercise this right more often, but where they seek to do so all parties should be given plenty of warning so they may assess their position more carefully before proceeding.”

The IoJ(TU) has requested that the Ministry adopt option zero, which is to maintain the status quo. The options in detail are set out on this page.

Options

Option 0 – Do nothing. Charge no fee and continue to fund the Employment Tribunals (ET) and Employment Appeals Tribunals (EAT) through general taxation.

Option 1 – Introduce a fee-charging structure where:

  • the person who brings proceedings or seeks an order initially pays the relevant fee;
  • all types of appeals and all parts of the process are subject to fees payable in advance;
  • a full or partial fee remission is available to those on low incomes;
  • a power for the tribunal to order the unsuccessful party to reimburse the fees paid by the successful party; and
  • fee levels are initially set at a level to recover less than the full costs of the ET and EAT taking into account fee remissions.

Option 2 (for ET only) – To introduce a fee-charging structure, which shares some of the same features as Option 1, but which also:

  • requires the claimant to choose whether to seek an award value above or below £30,000;
  • prevents the tribunal from making an award above £30,000 where the claimant has chosen to limit any award value to less than this amount through the payment of an appropriate fee; and
  • provides guidance and support to ensure that claimants can assess whether to make a claim for more or less than £30,000.

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