ET fees: High farce in the High Court

In the days immediately following the High Court’s dismissal, on 17 December, of UNISON’s second application for judicial review of the ET fees regime, I was too busy eating humble pie and shouting “The law is an ass!” at anyone looking vaguely lawyer-like to sit down and bash out a blog. And, in any case, folk such as Kerry Underwood and James Medhurst were doing a fine job of pointing out the High Court Emperor’s lack of legal clothing. So I thought I’d keep schtum and let my irritation subside over the Yuletide break.

But, far from subsiding, over the past ten days my frustration and disappointment has solidified into a certainty that the UNISON legal team did not fail to convince Elias LJ and Foskett J of the detrimental impact of ET fees on workers’ access to justice. The learned judges simply bottled it.

The giveaway lines are by Elias LJ in paragraph 60 of the judgment, and Foskett J in paragraph 96. Elias LJ says:

“The [MoJ statistics on tribunal claims] demonstrate incontrovertibly that the fees have had a marked effect on the willingness of workers to bring a claim” and “I suspect that there may well be cases where genuinely pressing claims on a worker’s income will leave too little available to fund litigation.”

And Foskett J says:

“The effect of the new regime has been dramatic … so dramatic that the intuitive response is that many workers with legitimate matters to raise before an ET must now be deterred from doing so because of the fees that will be demanded of them before any such claim can be advanced. For my part, I would anticipate that if the [MoJ] statistics … were drilled down to some individual cases, situations would be revealed that showed an inability on the part of some people to proceed before an ET through lack of funds which would not have been the case before the new regime was set in place.”

In short, the learned judges fully accept the contention at the heart of UNISON’s application for judicial review: that the hefty fees make it exceptionally difficult for a significant number of potential applicants to bring a claim (by consensus the legal test on effectiveness). But they then swerve away from the obvious next step – allowing the application – by pointing out that, as UNISON’s application was not brought on behalf of any individual workers, the Court had not seen any actual evidence of this.

Well, yes. But a jury can justly convict a defendant of murder without having witnessed the fatal stabbing. And a parent dashing from the kitchen to the sitting room, in which his children have been noisily pillow-fighting, can justly conclude that it was his offsprings’ careless exuberance that produced both the sound of shattering glass that induced his frantic dash, and the shattered fragments of glass now littering the sitting room carpet – even if his offspring contend that it was not their fault.

High Court judges are not stupid (or so I am assured by people who are definitely not stupid). So Elias LJ and Foskett J must have known, when drafting their judgment, that what they were implicitly asking of UNISON is nigh on impossible. The jury in a murder trial cannot be transported back in time to the scene and moment of the crime, and a parent cannot be everywhere at once. Equally, even if the hard-working UNISON legal team had been able to find ten, 20 or even 100 potential ET claimants who were deterred by the fees – a difficult enough task in itself – how could it be proven that this was the reason the workers had not pursued a claim?

In court, the judges would not want simply to take each such assertion at face value. And the Lord Chancellor’s counsel would no doubt seek to challenge the merit of each potential claimant’s claim, and to ask why, for example, the potential claimant and her husband had not downsized from their three-bedroomed house in order to fund a claim for unlawful, pregnancy-related dismissal. After all, they would surely only need two bedrooms, even after the birth of their child.

So, let’s assume that the trojans in the UNISON legal team had somehow unearthed the cases of 20 potential but deterred claimants to highlight before the High Court, and that the Lord Chancellor’s counsel had managed to knock out ten of them. By any standards, that would still have been some achievement on the part of the UNISON team. But what would those ten remaining cases have added to the evidence before the learned judges?

The answer is: nothing. It could still have been argued that the ten cases do not amount to a significant number, when set against the overall number of tribunal claims – all ten could just be cherry-picked outriders. And Elias LJ and Foskett J would not have been present when the workers made the decision not to proceed.  So they could just as easily have dismissed the application with the throw-away line that, should UNISON be able to come up with evidence of a more significant number of potential but deterred claimants, “the Lord Chancellor would doubtless feel obliged to address it.” To which one can only say: and pigs might fly. After all, that’s just what the High Court said when dismissing UNISON’s first application for judicial review, in February.

All of which leaves me thinking that, in this case at least, the law really has been an ass. Elias LJ and Foskett J know as well as anyone – including the hitherto emu-like BIS employment relations minister, Jo Swinson – that the fees regime introduced in July 2013 has drastically narrowed workers’ access to justice, to the benefit of dinosaur and rogue employers. But – for whatever reason – the learned judges were not prepared to say so by allowing UNISON’s application, and so embarrass the Lord Chancellor.

The three of us (apart from a handful of court correspondents) who were in Court 2 of the Royal Courts of Justice on 17 December know this to be true. Maybe Elias LJ delivers all of his judgments near inaudibly in less than five seconds before scuttling out of the courtroom (after his abrupt departure, we had to ask clearly bemused court officials what he had said). For my part, I am convinced that what I witnessed that day is a very clever man deeply ashamed of his unprincipled and rather silly handiwork.








ET fees: We have to stop chasing unicorns in Fiscal La La Land

Last Friday, and over the weekend, I took the rare step of publicly disagreeing – via Twitter – with a leading #ukemplaw practitioner. It’s not the first time I have been so impertinent, but I do try not to do it too often. Well, I like to feel safe when I walk down the street.

Camilla Palmer, formerly of Leigh Day and now of YESS, had posted an on-point blog post in response to the latest set of quarterly ET statistics. After noting that “we already have an increasingly insecure labour market with zero-hours contracts, pay freezes and huge inequalities” and that “employers will become increasingly complacent about obeying employment laws when previously they would have done so for fear of ending up in a tribunal,” Camilla concluded “what use are employment rights without remedies?”

What use indeed. As predicted by many, the ET fees regime introduced in July 2013 has proven to be a fabulous gift to dinosaur and rogue employers, who can now mistreat and exploit low paid workers with near impunity. Camilla and I agree that remedying this is the single most important employment relations policy issue for the next government. But I had to disagree with Camilla’s assertion that “there is no indication from any party that fees will be changed [after May 2015].”

In fact, both Labour and the Liberal Democrats have indicated clearly that they would change the fees regime, should the electorate give them the chance to do so. In September, shadow business secretary Chuka Umunna became the first shadow minister to spell out the policy agreed a few weeks earlier by the party’s National Policy Forum: under a Labour government, the current fees regime would be scrapped and replaced by one ensuring that “affordability” is not a barrier to justice.

At the very least, that implies a substantial reduction in the level of claimant fees – quite possibly to a nominal level. And, at their party conference in October, the Liberal Democrats adopted a policy paper noting that the “high level of tribunal fees presents too much of a barrier” to justice – a mind-boggling statement suggesting the Liberal Democrats think it OK to have some barrier to justice, just not too much. The policy paper commits the party to a review of the fees regime, with a view to lowering the level of the fees, if re-elected to government in May. (Yes, I know).

However, to Camilla and many others – including the TUC – that is not sufficient. They want outright abolition of the fees regime, and will not brook arguing for anything less. To my mind, that is an honourable position. But it’s also chasing a unicorn in what FlipChartRick calls Fiscal La La Land. (And it’s worth noting that, according to Marxist economist and cook Chris Dillow, “four-fifths of  macroeconomists agree with Rick.”)

There are two, very simple reasons why outright abolition will simply not happen, whoever’s installed in government in May. The first is that the CBI and other employer lobby groups would not swallow outright abolition. And, if you doubt the influence of such groups, note how Chuka Umunna and Rachel Reeves have, in the face of CBI protest, been energetically rowing back on Ed Miliband’s pathetically modest conference pledge to increase the NMW rate to at least £8 per hour by 2020.

The second reason is money. It is now clear that outright abolition of the fees regime would cost new ministers at least £12 million, and possibly as much as £35 million, per year in lost fee income and lost operational cost savings from the dramatic fall in cases, which would presumably reverse. (For an explanation of why the price tag ranges from £12m to £35m, see here).

Now, £12 million per year is undeniably a piddling sum, when set against overall government expenditure. But with the spending plans of all three main parties so tight that many are predicting the bankruptcy of local authorities and even police forces soon after May 2015 if something does not give, it’s £12 million per year that newly-installed justice ministers would either have to find from somewhere else – the legal aid budget? – or replace with income from an alternative fees regime, perhaps based on nominal claimant and respondent fees, that does not significantly impede access to justice. No new Chancellor of the Exchequer is going to say ‘oh, no worries, here’s an extra £60 million for the next five years, I’ll find a way to cover it eventually, maybe by tackling corporation tax avoidance.’

Which presents those of us who want to see the restoration of workers’ access to justice with a stark but simple choice. We can continue to chase unicorns in Fiscal La La Land, and leave the inevitable creation of that alternative fees regime to the politicians and their influential friends in the corporate world (who will not want respondent fees, for example). Or we can accept the reality of public spending from May 2015 to at least 2020, and try to shape that alternative fees regime ourselves.

That said, I count myself among what Camilla pessimistically describes as “the few holding their breath” for the judgment in UNISON’s (second) JR of the fees regime. Should that go UNISON’s way, as I believe it will, even BIS employment relations minister Jo Swinson might now be willing to pitch in against the Ministry of Injustice in terms of shaping the current government’s response. At the weekend, Ms Swinson finally broke her astonishing 13-month public silence on the impact of the fees regime by revealing to the Independent that she has written to justice minister Shailesh Vara, demanding that the Ministry’s long-promised post-implementation review of the fees regime be conducted “without further delay, particularly given the alarming drop in sex discrimination claims.”

I know that my regular readers – hello Mum! hello Dad! – will be feeling a little disgruntled at the lack of charts in this post, so here is one showing that alarming drop in sex discrimination claims.


Postscript (16 December): Camilla’s colleagues at YESS clearly feel that I’ve been somewhat unfair to Camilla, and have posted this riposte, which I urge you to read. I can only say that I’m not questioning anyone’s integrity or commitment to the cause of protecting workers’ access to justice.