To fee, or not to fee? The question that Labour must answer soon

In recent weeks I’ve been pondering the Labour Party’s inability to say what, if anything, it plans to do about the Coalition’s employment tribunal fees if elected in 2015.  A number of shadow ministers, including Yvette Cooper and Gloria De Piero, have publicly highlighted the gross injustice of asking women who have been forced out of their job by pregnancy or maternity discrimination to shell out up to £1,200 – the equivalent of nine weeks’ statutory maternity pay – in upfront fees to bring a tribunal claim against their former employer.  And backbenchers Diana Johnson and John Cryer have each raised the issue at Prime Minister’s Questions.  But none of them have been able to say whether Labour would abolish or otherwise reform the fees regime.

No doubt this is partly due to the rigid discipline on making any policy commitment that comes with a price tag – abolishing the fees would leave a hole in the incoming Justice Secretary’s budget of up to £10 million (the sum the Ministry said in 2012 it expected to reap in fee income).  However, it may well be that the Ministry underestimated the impact of its eye-wateringly high fees on the number of claims, which appears to have fallen off a cliff since the introduction of fees in July.  So the actual loss of fee income from abolition could well be much less than £10 million.

More importantly, abolition is by no means the only option.  Back in 2012, when the Ministry was consulting on its proposed fees regime, I suggested an alternative way of generating £10 million of fee income, based on a nominal issue fee for claimants (including each claimant in a multiple claim case) and a more substantial ‘loser’ fee (or penalty) for losing employers – the ultimate ‘users’ of the tribunal system.

That suggestion did not meet with universal approval – the TUC and unions strongly resented any suggestion that their members should pay the same as an individual tribunal claimant for bringing a multiple claim case.

So, here’s another alternative regime: a nominal issue fee for claimants, together with a nominal fee for employers to defend a claim (payable when submitting the ET3 response to the claim).  That would meet the concern of employer lobby groups that would-be claimants need to be “incentivised to think through whether a formal claim really needs to be lodged”, without creating a significant barrier to justice.  And, if there are to be fees, it is entirely fair to charge employers to defend a claim.  Because, with the introduction of ‘early conciliation’ of all potential claims by Acas from April 2014, any employer who fails to resolve the claim (for free) through Acas is from that point on as much a ‘user’ of the tribunal system as the claimant.

Using the ‘steady state’ figures for claims and disposals set out in paragraphs 3.10 – 3.13 of the Ministry’s final impact assessment, I calculate that a flat-rate issue/defend fee of just £50 would generate £4.8 million.  Which could be topped up to some £6.5 million by imposing a ‘loser’ fee/penalty of say £200 on the 8,000 losing employers.  And such a simple, transparent and fair fees regime would obviate a fee remission scheme, thereby saving some £1 million in administration costs.

This basic model could of course be tweaked in any number of ways.  For example, the one in five claims that are straightforward (and mostly low-value) claims for unpaid wages could be charged a lower fee, or exempted altogether (my preference).  And the claimant and respondent employer could each be charged a nominal hearing fee if the claim proceeds that far.

But the essential point is that the price tag attached to restoring access to the employment tribunal system could be very small indeed.  Which means there really is no excuse for Labour’s reticence on the issue.  And, if shadow ministers don’t speak out soon, they might find themselves beaten to it by the Liberal Democrats, looking to differentiate themselves from their erstwhile coalition partners, and tempt back some liberal-minded voters, in the run-up to 2015.

Direct Disability Discrimination – the correct comparator

I have found that representatives often assume that the correct comparator in a direct disability discrimination claim is someone who is not disabled.

You can see why they make their assumption. S.13(1) provides:

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

In order to work out whether the protected characteristic causes the difference in treatment, you would want a comparator who does not have the characteristic. The protected characteristic is defined at EA 2010, s. 4 as “disability”. So it’s simple then: Person B has a disability and their comparator should be someone without a disability. Or is it that simple?

EA 2010, s. 23 tells us how to perform the comparison:

“(1)   On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case.

(2)   The circumstances relating to a case include a person’s abilities if –

(a)   on a comparison for the purposes of section 13, the protected characteristic is disability”

So, in a direct disability discrimination case, the comparator should have the same “abilities” as the claimant. But a person’s abilities (to carry out normal day to day activities) are a key element in determining whether or not they have the protected characteristic (EA 2010, s. 6(1)(b)), so if claimant and comparator have identical abilities, they may both have a disability.

Why would the Act provide for a test in which both claimant and comparator are disabled? The answer is to be found in the critical (and much ignored) EA 2010, ss 6(3)(a):

“In relation to the protected characteristic of disability –

(a)   a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability”” [My emphasis].

It is where the claimant’s particular disability is what causes the disparity in treatment that liability is established. The comparator may be another disabled person, provided that their particular disability is different to that of the Claimant.

Or have I got this wrong? This analysis means the scope of protection is much narrower than many assume. Perhaps so narrow that direct disability discrimination claims would only succeed very infrequently. Let’s have an argument in the comments below.

Welcome to Hard Labour

This is a community blog for Employment Lawyers and HR Professionals. Its purpose is to give a platform for those who have something they want to say about Employment Law and to provide a forum for debate. We would welcome submissions for publication or cross-posting.