After years of personal teeth gnashing over the disastrous policy of employment tribunal fees, it is encouraging to see that the Labour party has promised to abolish them if elected in May. In its workplace manifesto launched on 1 April Labour states unequivocally that the Tory-led government’s fee system had failed. For those of us who have been arguing against this government’s systematic dismantling of access to justice it was a real hallelujah moment.
This so-called battle on red tape led by the Tories has seen many people with genuine grievances locked out of the justice system. Claims fell by over 70 per cent when fees came in and are continuing to decrease in some areas. The notion that this has put off vexatious litigants, those who have no claim, is not supported by the employment tribunal statistics, as the number of claims that are unsuccessful or struck out at an early stage has risen slightly as a percentage of claims issued. Anecdotally, it is often apparent that the money that people may have spent on legal advice, is now going on tribunal fees and therefore they are not getting crucial guidance on how to present their claim. The effect of this is particularly injurious as the coalition dramatically cut funding to pro bono providers including organisations like the Citizens Advice Bureau, which used to fill the gap. For employees who do make it through the employment tribunal system despite the fees, they can be faced with a recalcitrant employer who does not honour the tribunal judgment and refuses to pay them their compensatory award. This problem has in fact been acknowledged by Jo Swinson, the Liberal Democrat minister for employment relations, in her article for this month’s Employment Lawyers’ Association monthly newsletter. Although, typically for the Liberal Democrats, no solution has been forthcoming during her tenure.
Labour’s business manifesto promise will make a real difference to the lives of people with legitimate disputes who have not had the funds to seek redress. The need for employment tribunals should be obvious since employees are often outgunned in comparison to large and heavily resourced employers. Despite a large body of evidence provided by Unison in its two judicial review challenges of the fee regime, there has been little appetite amongst the judiciary to be seen to overturn Tory led government policy. Unison has received permission to appeal the outcome of these judicial reviews but the hearings are likely to be in June 2015. It is highly unlikely that the court of appeal will produce a judgment that month and there is no guarantee that there will be a favourable outcome if the hearing proceeds, since judges may fight shy of challenging ‘political’ decisions.
The reality is that Labour’s election to government in May is the best chance of seeing access to justice restored. Labour plans to consult with both the Cofederation of British Industry and the Trade Union Congress to agree a way forward. Despite fears in some quarters that these two groups may be polarised on this issue – there is a great deal of communality in their views as evidenced in 2014. Involving representatives of business and employees reflects the true spirit of employment tribunals where a judge is often flanked by two lay members – one from a trade union and one from a business. If Labour wants to build better workplaces, its commitment to abolish employment tribunal fees is a great start.
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Sara Ibrahim is a barrister whose focus includes employment and equalities law. She is a member of the Fabian Society executive committee and former chair of the Young Fabians. She tweets @sara_e_ibrahim
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As someone who spent nearly 18 months without any legal employment knowledge fighting my own case without any legal help, that included a complaints process with my employer, via a barrister;s office acting as independent arbitrator but paid for by the company and knowing this fact, owned by an oligarch. And taking on the company’s high profile law firm advising the company all leading to a process towards a employment tribunal. I was refused by Citizens Advice who would only take up my case if it had a high percentage chance to win. I then sought help from pro-bono law firms and barristers, to seek legal advice,help and representation. I found not one would take up my case ithat also including human rights legal firms because of two points, one the case would be over three days and the case was not a 90% above winnable. I then had to take on a law firm on pre-hearing evidence sharing, with reviewing three large files of documentation, legal arguments on points of law with the law firm. Again without legal knowledge, then seeking witnesses at the same time to attend. I also had to attend without any legal knowledge a pre-hearing with the judge and with three lawyers of the law firm hired by the company and oligarch, whilst completely at loss with the legal process let alone the process of a employment tribunal. Then preparing for the tribunal itself was a legal nightmare, as the law firm played legal strategic games, which I was not fully aware of. The barristers firm acting for the oligarch and company was the same barrister firm that acted as as independent arbitrators in my complaint procedure with the company in the first instance and sought to sue the same evidence against me. So I had now a legal firm and barristers firm to take. Come the tribunal, again I was lost in a maze of legal processes and requirements and the barrister took full advantage and I was lost and also lost my case. I was at the time unwaged, no money, the oligarch spent what ever it took. I dropped half my case to make it easier for me.
What this does highlight that the issue of the philosopher rawls and the notion of justice, has been diminished in this country in with the notion of common law. Legal representation today is a filtering process, only represent those that are members of a union, or the case is winnable only by pro-bono barrister, and on the other side if one has money one can buy justice. I had no chance from the beginning, if I had legal advice and representation, I could of won my case. So the issue of what now is Justice and the ethics and moral values at stake. Should not all people have a right to equal and fair justice. I have learnt this is not so. What is required is that enshrined in law all who wish full legal advice and full representation are free to do so in employment law regardless of cost or time. For example , let us look at how much to investigate the issue of phone tapping cost and other such hearings and investigations, the government have money for this. I support any positive change but it must be full inclusive and not bit by bit. We need a fully funded legal approach.