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.
Hard Labour 
An excellent article. But if I can take issue with the final point what we don’t know yet is whether the imposition of fees will result in costs being awarded more regularly. Traditionally the principle has been that each party bears its own costs and only in extreme circumstances have costs been awarded. Now that tribunal fees exist we need to see if they are awarded more often to successful claimants – something I suspect we won’t find out till maybe autumn this year (i.e. after a full year of fees)
The minister must have been referring to the new power for tribunals to require R to reimburse fees paid by C, which presumably will be routinely ordered if C wins (although there’s lots of room for argument about what “win” might mean in this context, and the problems with enforcing tribunal judgments apply equally to awards for reimbursement of fees).
I’m sure you’re right, Laurie. And I guess it is too much to expect a stand-in employment relations minister to know the difference between an award of costs, and the exercise by a tribunal of its discretionary power to order that a losing respondent employer repay the fees to the claimant. But then there are no published statistics on the exercise of this power, so it’s not at all clear how Ms Willott could believe that the power is “often” used. Have you seen this power used?
Thank you Simon! I would be surprised if the introduction of fees alters significantly the number of cases in which costs are awarded against either party. But what we will want to know is how often tribunals exercise their discretionary power to order repayment of the claimant’s fees by the losing respondent employer. I’m not confident that such data will be routinely collected by HMCTS. See also my reply to Laurie’s comment, above.
With all the uncertainties and risks of bringing a claim, in terms of chances of success and value of compensation (and the problems Laurie mentions Claimants experience being paid even when they have won) ‘many’ people would say £1200 is far far too much.
I admit to being overwhelmed by a sense of dejavu in the sort of judgment we can expect as a result of the Judicial Review of Tribunal Fees brought by UNISON. I do not think that the government are losing much sleep awaiting the outcome.
It is both curious that no-one from the legal profession has thought it necessary to save time and and a great deal money in freely petitioning the European Commission with a view to enforcement proceedings against the United Kingdom under Art 258 TFEU. The jurisprudence of the CJEU in cases such as Costa v ENEL has consistently held, that Member States may not unilaterally impose legislative measures the effect of which would be to nullify provisions of EU law which, in this case, applies to most of our employment law derived as it is from EU secondary legislation.
The effect of punitive fees required to bring and commence an action before a tribunal, and again if an appeal is necessary, renders EU law theoretical and illusory rather than practical and effective. By making it almost impossible for a whole swathe of the population to vindicate EU-based employment rights and then making the remedies worthless, the United Kingdom is, at the very least, in breach of its Treaty obligations under Art 4(3) TEU which requires the United Kingdom “to take any appropriate measure, general or particular,to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’ and that we are to ‘facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives’.
We have seen, in cases such as Factortame that when required, the EU is quite capable of forcing its Member States into compliance with Treaty Obligations, which includes giving full effect to secondary legislation enacted under Art 288 FEU. If we can protect the rights of Spanish Fishermen, why is it that we find it so difficult to prevent the employment rights of the most vulnerable and exploitable of our citizens from being rendered worthless by successive governments and the restrictive interpretation of our courts and tribunals?
Any thoughts?
Thank you for reporting this exchange Laurie. Rather scary that a minister is so out of touch with the detail of the impact of their policy.
Hi James,
The issue of tribunal fees and EU law was a key part of the Unison JR, sadly roundly rejected by the court. Unless you had a novel point in mind?