In the House of Commons yesterday, it was looking as if yet another session of oral questions to the Department for Business, Innovation & Skills (BIS) was going to pass without Vince Cable and his ministerial team being pressed on arguably the most damaging element of the Coalition’s erosion of workplace rights: the hefty, upfront employment tribunal (ET) fees introduced last July.
But then up popped Labour backbencher John Cryer with this poser (scroll down to column 438): “The Minister confirmed just a few minutes ago that women who become pregnant can and do face discrimination at work. Why, then, are the Government going to charge those women £1,200 to go to an industrial tribunal?”
Glossing over the fact that employment tribunals haven’t been called ‘industrial tribunals’ since 1998, the response by Jenny Willott – the Liberal Democrat MP covering as BIS employment relations minister during Jo Swinson’s maternity leave – is worth setting out in full:
I am disappointed that this figure is being bandied around yet again. It does not cost women more than £1,000 to go to a tribunal. It costs only £250 to start a claim, and most cases are finalised well before a hearing. For those who end up going to a hearing, fee remission applies in many cases, and if the women win their case, costs are often awarded against their former employers. It does not cost what the hon. Gentleman suggests, it is scaremongering by Labour Members, and I am concerned that this will put women off taking cases against their employers when they have been unfairly discriminated against.
Now, it’s true that it costs “only” £250 – the equivalent of a week’s wages if you’re on the national minimum wage, but clearly little more than loose change to a Parliamentary Under-Secretary of State – to start a claim for pregnancy, maternity or any other form of discrimination. But there’s little point paying to start a claim unless you intend to finish it, and if the respondent employer doesn’t settle your claim that will cost you another £950 – or another four weeks’ wages if you’re on the minimum wage. And why would the respondent employer settle your claim before seeing whether you are prepared to pay the £950 hearing fee on top of your £250 issue fee?
Then again, according to Ms Willott, that shouldn’t be a problem because “fee remission applies in many cases”. It does? I’d like to hear Ms Willott’s definition of ‘many’, because the only figures the Ministry of Justice has been willing to release to date show that 80 per cent of fee remission applications are rejected, and that just four per cent of claimants actually receive any fee remission. It’s entirely possible that the latter proportion has increased in recent months, but in that case why has the Ministry of Justice repeatedly declined to release more recent figures?
So, not much chance that you’ll get any fee remission then. But at least “costs are often awarded” against losing employers. They are? According to the official ET statistics, in 2011-12 costs were awarded to just 116 (0.005 per cent) of the some 24,000 claimants who won their case in the tribunal (either at a hearing, or through a default judgment). Call me picky, but I wouldn’t say that was “often”. Indeed, claimants are somewhat more likely to have costs awarded against them.
So, will many women who have been subjected to pregnancy or maternity discrimination by their employer be ‘put off’ from bringing an ET claim by John Cryer’s parliamentary question? I guess that comes down to whether you share the Minister’s rather unusual definition of ‘many’. But I think we can be sure that a great many more will be put off by having to fork out up to £1,200 in upfront fees, with little chance of any fee remission and – should they win – almost no chance of having costs awarded to them by the tribunal.