Three Cheers for the Magna Carta!
Published 19/09/2017
Melissa Mohndoro, Trainee Solicitor at RCJ Advice discusses the Supreme Court's decision to abolish Employment Tribunal fees. "The Employment Tribunals exist to provide a simple means for individuals to challenge the decisions of employers that affect their civil rights. In spite of the ever-increasing complexity of modern employment law, a great many citizens pursue claims in the employment tribunal as a litigant in person.
On 26th July 2017, the Supreme Court handed down judgment in the case of R (Unison) v Lord Chancellor. The Trade Union Unison challenged the lawfulness of employment tribunals’ fees which had resulted in a 70% decline in cases being brought to the employment tribunal. The Supreme Court held the fees to be unlawful as they prevented access to justice. Further, it was decided that the higher fees for “Type B Claims” was indirectly discriminatory as type B claims included discrimination claims.
Before the ruling fees were set at £160 for issuing “Type A Claims”, such as wages claims, and £260 if the claim proceeded to a hearing. Fees for the more complex “Type B Claims” such as discrimination and unfair dismissal claims were set as £250 for issuing claims and £950 if the matter proceeded to a hearing. Claimants on low incomes, welfare benefits and
experiencing hardship as a result of the fees had the opportunity to apply for a fee remission. The introduction of fees coincided with the introduction of mandatory Acas Early Conciliation which is a mandatory formal attempt to reach a settlement outside of the Employment Tribunal which is still in force.
Undoubtedly the scrapping of ET fees has made the tribunal more accessible to LIP’s, however LIP’s must still be aware of the opportunity for settlement afforded by the still mandatory early conciliation stage of bringing claims to the employment tribunal. Citizens Advice offers some useful information on the conciliation process as well as on valuing the different claims that can be brought to the employment tribunal on their public website. This information can be used as means of empowering LIP’s in settlement negotiations during the conciliation process. LIP’s will also need to be cautioned against bringing claims that are unlikely to be successful in the employment tribunal as in doing so they risk having a costs award made in a respondents favour and this could leave them in a difficult position financially if a claim with no prospects of success is brought and a costs award is made.
As an Adviser on the Make it Work Project run by Citizens Advice Islington, (which is part of RCJ Advice), a large part of our work involves assisting low-paid workers with accessing their employment rights. Our work involves everything from assistance with raising grievances up to bringing claims in the employment tribunal. As a result of this we have first-hand
experience of low-paid workers being deterred from bringing claims to the ET due to the fees.
Consequently, we anticipate that the Supreme Courts’ decision is likely to lead to an increase in demands on the services providing free advice to LIP’S in employment matters with the removal of the fee requirement. As a caseworker, clients tell me that they benefitted greatly from having ongoing support in taking their cases to the employment tribunal. Equally, they report on the positive impact of securing a representative from the Free Representation Unit, getting advice from the ELIPS project which is run out of an office in the London Central Employment Tribunal on a Thursday and offers free one-off advice to LIP’s whose cases have been listed, and the Bar Pro Bono Unit which offers a wide range of support to Litigants in Person including an opinion on the merits of a claim on a referral basis.
We find that LIP’s tend not to be fully aware of the demands of litigation in the ET which has long been thought of as relatively informal and relaxed. LIP’s are shocked when they find out they are required to appear in the tribunal and that they may have to undergo cross-examination from the respondent’s legal representatives regardless of whether they themselves are represented. The realisation that the ET requires the same level of engagement, planning and preparation as any other jurisdiction, particularly when the respondent has the
advantage of legal representation, often comes as a surprise to LIP’S and, due to this, it is important that they are made aware that whilst there are pro bono resources available to assist them, there are constraints on these resources. As such, the majority of the responsibility for the planning and preparation for an ET claim rests on the LIP.
Finally, there does exist the potential for claims to be brought in situations in which claimants had previously been deterred by the fees to bring claims in the ET outside of the general three-month time limit. This possibility will lead to an increase in the demand for specialist advice.
We welcome the decision of the Supreme Court to abolish fees. Access to justice for the most vulnerable in the workforce has been restored. However, true access to justice means LIP’s being empowered by advice and support to navigate the system that they are being given access to. Whilst the barrier created by the fees has been removed for the time being, we must aim to put LIP’s in a position in which they are aware of what is required of them in order to achieve success in the ET.”
