Will the consultation on employment tribunal fees reduce the backlog and speed up the process for ‘genuine’ cases or restrict access to justice for the poorest?
The Government is consulting on introducing fees for employment tribunals. It’s in response to the burgeoning backlog of cases. But the last time it did this back in 2013 it led to a huge drop in cases, particularly discrimination cases because many people just couldn’t afford the fees.
The consultation emphasises that the fees involved will be ‘modest’ – an one-off fee of £55, but in the context of rising costs generally and, given that many people are struggling just to make ends meet these days, much more so than back in 2013, it seems that, as well as reducing so-called spurious claims, it will mean many people will just not be able to afford taking action against bad employers.
The argument often put forward by people who campaign for cutting down on numbers of claimants is that the pendulum has swung too far in favour of employees. For anyone who has contemplated taking legal action against their employer this will not match up with the reality, particularly when it comes to certain litigious private sector employers.
Perhaps mine is a partial view, but I recall getting advice on taking legal action against one employer and how frightening that whole process was. I felt very much isolated, despite some support from a colleague in another publication and despite other colleagues telling me about their own experiences. The employer seemed to have all the power. They had expensive lawyers who could issue threatening letters. They had the money to hire a mediation service to cover their backs where I was told that what I experienced was basically all in my imagination.
I remember telling my mum on my walks to work that it was like going over the top everyday, not knowing where the next attempt to make me feel I was failing was going to come from [and all because I pointed out an agreement that was made over flexible working which my boss was trying to claim had never happened]. It didn’t help that throughout this period I was either pregnant or had just returned from maternity leave. I could have asked some of my colleagues to vouch for me about their own experiences, but I felt I didn’t want to put them in the firing line. I’m pretty sure my employer went through all my emails looking for anything to get me on as they did it to my deputy.
In short, it was a thoroughly horrible experience where I had no power whatsoever, except to leave, which I did. In fact, they told me to leave a week or so before I was due to leave, giving me just a few minutes to pack my stuff up just to make me feel worse.
When I went back to hand in my pass, I could not be in the office without shaking and feeling violently ill. It took me months to fully recover physically and longer mentally. In the end I decided not to take legal action because I was worried about the cost and I didn’t want the stress of all of that hanging over me. I wanted to escape and to never ever return.
So I find the pendulum argument a bit difficult to swallow. What’s more, the balancing line between restricting access to justice on the basis of money and reducing the tribunal backlog is a fine one. On the one hand, getting rid of so-called spurious cases could make the process less stressful and drawn-out for others. On the other, for every spurious case there is a risk of a genuine case being deterred. Is that a risk we should be taking? In the meantime, there are surely other ways to lower tribunal cases, for instance, through better enforcement action against bad employers and bullies, taking the bullies to task rather than pushing the person who has been bullied out.