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Thursday, 27 July 2017

Unaffordable justice is no justice at all

No one should underestimate the significance of this week's Employment Tribunal (ET) fees victory in the Supreme Court. The highest court in the land has taken a nasty piece of anti-worker legislation and completely ripped it to shreds. The Government has no way of wriggling off this particular hook, so they are trying to sound magnanimous in defeat, when in reality they have no choice. The scheme has been stopped with immediate effect and fees paid to date are to be refunded at an estimated cost of £27 million.

After the introduction of the fees, ET cases dropped by nearly 70% and, regrettably, many working people couldn't afford to uphold their rights at work. It is extremely unlikely that there will be any remedy for such people whose grievances remain unresolved.

The ostensible aim of the fees regime was to deter frivolous or vexatious claims. While I'm sure there have always been such claims, the experiences of reps who have dealt with ETs is that most were genuine. Any trade union rep who has dealt with personal cases will on occasions have been in the position of having to tell a disgruntled union member that, whether we like it or not, the employer is entitled to take the action in question. Everyone knows that employers have the right to discipline or dismiss staff for inefficiency or misconduct, and sometimes the role of a rep can be little more than ensuring that the employer follows correct procedures. When they do, then there is usually no point in going to an ET, which is intended to deal with discrimination and unfair dismissal.

And this is the key point: if an employer goes by the book, there is little a rep can do other than argue for mitigation as part of a damage limitation exercise. It does no one any good to take a hopeless case to an ET: it merely raises false hopes in the member, and wastes both the rep's and the tribunal's time. Charlie Mullins, an employer with 300 staff, complained on Radio 4 that the Supreme Court decision will open the floodgates. However, he has been in business for 31 years and has in all that time had one ET taken out against him: with tribunal fees only payable for 4 years, one claim in the other 27 is more of a trickle than a flood. Mullins is a Tory donor, so perhaps he feels he's not getting his money's worth.

The Government must have known how uncommon vexatious claims are - they are one of the biggest employers in the land, after all - so why did they introduce these fees? I can see no other reason than to remove a 'burden on business' by putting a price on employees' rights, but without any corresponding measures to deal with unreasonable or malicious actions by employers. While employment rights hadn't in themselves been abolished, ET fees discouraged workers from exercising them. It is a measure of how out of touch successive governments are that they do not understand that sums like £1200 are simply not available to many people - for many MPs that's considerably less than they may spend on a night out. Or, alternatively, they simply didn't care.

There will always be people who will abuse whatever system is in place, whether it be tax, social security benefits or MPs' expenses. Imposing penalties on the innocent majority ostensibly to deter the minority is unjust and - when applied to ETs - now unlawful. No one should ever have to pay crippling fees just to access basic justice.

Justice is not the prerogative solely of the rich and the powerful: it belongs to everyone.

Neville Grundy
ARMS Merseyside

Afterthought: ET fees were introduced by the Coalition. What now of the LibDems' claim that their presence in Government moderated the worst Tory excesses?

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