In response to widespread concern about the detrimental impact on access to justice of the employment tribunal fees regime introduced on 29 July last year, Coalition ministers have repeatedly claimed that low-income claimants will have their access to justice protected by the accompanying fee remission scheme. In late October, for example, just days after the Ministry of Justice published provisional statistics indicating a sharp fall in the number of individual claims since July, the BIS employment relations minister, Jo Swinson, stated (in a letter to Maternity Action):
“The Government believes that all users of the tribunal system should make a contribution to the costs where they can do so, regardless of the type of claim. Where claimants cannot afford the fees, the remission system ensures that nobody will be denied access to the tribunal.”
However, the tribunal fee remission scheme, under which a claimant can receive full or partial exemption from the fee, is simply a revised version of the pre-existing County Court fee remission scheme, which in 2012 was condemned by Citizens Advice as “not fit for purpose” on account of its complexity and maladministration by HM Courts & Tribunals Service. Under this revised scheme, any individual living in a household that has £3,000 or more in savings will not be entitled to any fee remission. This eligibility criterion applies to everyone, including those out of work.
And let’s not forget, the upfront fees introduced last July are substantial. To issue and pursue a claim for unfair dismissal, for example, costs £1,200 (an issue fee of £250, and a hearing fee of £950). Will summarily dismissed workers who have acted prudently to protect their family from sudden financial shocks by building up moderate savings of just £3,000 want to risk £1,200 of those savings on a tribunal claim for unfair dismissal, when there is no guarantee that the employer will repay the fees even if the claim is ‘successful’? As recent government research has shown, half of the workers awarded compensation by a tribunal do not receive their award in full, and there’s no reason to think that those employers who fail to pay an award will be any more forthcoming when it comes to the repayment of hefty fees.
Furthermore, the upper income limits, above which claimants will not receive even partial remission of the fees, are set extremely low. An analysis by economist Howard Reed, commissioned by the TUC, shows that “even among households where someone is earning just the national minimum wage, fewer than one in four of these workers will receive any [fee remission] and will have to pay the full fees”. Reed’s analysis further suggests that just one in nine disabled workers, and one in 20 workers aged 50-60 (i.e. those most at risk of age discrimination) would qualify for full fee remission.
So, has the fee remission scheme protected access to an employment tribunal since the introduction of fees in July? Last week, I stumbled across a Ministry of Justice response to a Freedom of Information request, published on-line by the Ministry in November (FoI 86412) but, as far as I can tell, not otherwise reported by whoever it was that submitted the request. This states that, of “the 852 employment tribunal fee remission applications submitted nationally between 29 July and 11 November, 672 were rejected”. That is a rejection rate of 79 per cent.
In other words, during the first three months of the fees regime, just 180 tribunal claimants received full or partial fee remission. And we know that, in the same period, there were some 4,500 tribunal claims by individual workers (i.e. single claims; I have left multiple claims out of this analysis). So, only 22 per cent of all single claimants applied for fee remission, and just four per cent of all single claimants received full or partial fee remission. Yet as recently as September 2013, in its final Impact Assessment on the revised fee remission scheme, the Ministry of Justice suggested that 31 per cent of all claimants would be eligible for full (25 per cent) or partial (six per cent) fee remission.
Furthermore, the figure of 4,500 individual claims in the three-month period August to October is substantially lower than the average number of such claims prior to the introduction of fees. But for the introduction of fees, we could have expected about 13,200 single claims in that period. So a mere 1.4 per cent of the individual claimants we might have expected in the first three months of the fees regime received full or partial remission of the fees.
Whichever way you look at it, the fee remission scheme didn’t do a great deal to preserve access to justice in the first three months of the fees regime. That said, the fee remission application rate may have risen in subsequent months, and the rejection rate may have fallen, as legal advisers became more familiar with both the fees regime and the fee remission scheme.
Well, maybe – time will tell. But there’s certainly no room for the sort of ministerial complacency exhibited by Jo Swinson in October. If the numbers don’t improve significantly, and soon, the fee remission scheme is going to look a very small fig leaf.