I had been thinking I would save writing this post until after the main political parties have published their general election manifestos – which, back in the day, surely used to happen at the start of election campaigns? But it’s not often that I get a chance to write about good news and, well, I can contain myself no longer. For, over the past week or so, both Labour and the Liberal Democrats have restated their policy position on employment tribunal (ET) fees with a certainty and clarity that was previously somewhat lacking.
First up was Labour, which chose the afternoon my builders locked me out of my house (so away from my computer) to publish its Better Plan for Britain’s Workplaces (i.e. what normal people might have titled ‘Labour’s Manifesto for Work’). This states:
The introduction of fees of up to £1,200 for employment tribunal claimants has failed. It represents a significant barrier to workplace justice, and has failed to raise any money. Labour will abolish the Government’s employment tribunal fee system as part of reforms to make sure that workers have proper access to justice, employers get a quicker resolution, and the costs to the taxpayer are controlled. We will ask Acas to oversee a process led by the CBI and the TUC to agree reforms to the system.
Which is a significantly clearer (and bolder) statement of policy than that set out in last summer’s National Policy Forum report and first announced publicly if somewhat cryptically by shadow business secretary Chuka Umunna at the TUC conference in September, even if it still fails to answer the question of what kind of fees regime Labour might put in place of the current, “failed” regime. Which is an important question if, like me, you find it hard to believe that Labour would abolish fees outright. Or if you find it hard to believe that “a process” jointly led by a powerful business lobby group vehemently opposed to outright abolition would result in ‘agreement’ on outright abolition. Whatever, the clarification is vindication for those within Labour who have bravely pushed hard on the issue, especially NEC member Johanna Baxter.
However, the revised position also raises some new questions. If abolition of the current, “failed” regime would be tied to completion of a process, led by the CBI and TUC, of reaching agreement on a wider package of reforms aimed at ensuring that “employers get a quicker resolution, and the costs to the taxpayer are controlled”, how long would that take? Weeks? Months? A year? And would the current, “failed” regime continue in the meantime?
Call me picky, but to my mind that would be unacceptable. I suggest there would need to be an interim solution, involving an immediate (and substantial) reduction in the current level of claimant fees. Ideally, that would involve lowering both issue and hearing fees to a nominal level, at which I would hope to see them remain in the longer term as part of a revised fees regime including similarly nominal fees for employers to defend a claim, and a ‘polluter pays’ penalty on employers found by a tribunal to have flouted the law. The CBI has already indicated it could live with nominal fees for claimants, though of course it would have to be persuaded to accept nominal fees for respondents. Whatever, I very much doubt we will get answers to these (and other) questions before 7 May.
Three days later, and with much less fanfare, it emerged that Labour is not alone in tightening up its policy position on ET fees. On 4 April, employment lawyer (and Chair of the Law Society’s employment law committee) Laurie Anstis tweeted extracts from the contributions by each of the three main political parties to the April 2015 edition of the Employment Lawyers’ Association briefing (unpublished, but available online to ELA members, of which I am not one). The ELA had invited the three parties to “provide their manifesto proposals on employment law”, and the briefing sets out responses from Lord Hunt for the Conservatives, shadow BIS minister Ian Murray for Labour, and BIS employment relations minister Jo Swinson for the Liberal Democrats. Laurie has now very kindly provided me with a copy.
The section of Ian Murray’s contribution on ET fees is simply a reiteration of Labour’s previous, somewhat strangled position, now overtaken by the above events. And Lord Hunt hints that a Conservative government would go even further than the Coalition in restricting access to the ET system, as “There is still work to be done to ensure that ‘frivolous’ claims, which cost the taxpayer thousands of pounds in legal fees, are reduced”. There is? Really? But it was the contribution of Jo Swinson that most excited me (no, I never thought I’d write that either :-)). In a refreshingly candid section on ET fees, that is worth setting out in full (with my emphasis added), Ms Swinson says:
Liberal Democrats only supported the Conservative proposal to introduce employment tribunal fees on the basis that a rigorous review would be conducted, within a year of its introduction, to assess its impact and ensure no one was deterred from legitimate access to justice. Since fees were introduced, claims received by the employment tribunal have fallen substantially between July 2013 and September 2014 (notwithstanding the pre-claim conciliation service changing to the early conciliation service in [April] 2014).
Employers know that fees will put many potential claimants off bringing a claim. While I appreciate that many employment disputes will settle out of court, there is a real concern that bona fide claims are being unheard due to workers being unable to afford fees. Two years after its implementation, the Ministry of Justice’s failure to deliver an open and objective assessment of the impact of these reforms is inexcusable. It’s an issue repeatedly raised by myself and my colleague, Vince Cable. There is a clear, necessary and urgent need for this review to take place which goes to the credibility of our judicial system, not just the need for fairness.
There is also scope for tribunals to require the employer to reimburse a successful applicant. Studies have shown that over a third have not received any [of their monetary award] at all. It is absolutely wrong that employees end up paying fees in respect of successful claims for which they will never receive an award. The Liberal Democrats believe that a balance can be struck between managing the costs in terms of time, money and stresses of the tribunal system, and ensuring that employees’ rights are protected. That’s why we would review the level of tribunal fees to ensure that they do not prohibit people from making bona fide claims. A nominal fee could be appropriate to not unduly deter sound claims.
This is music to my ears, both on ET fees and on the shockingly common non-payment of awards, an issue I banged on about for a decade when at Citizens Advice, to very limited effect. Section 150 of the Small Business, Enterprise & Employment Act 2015, which received its Royal Assent in the last week of the Coalition, provides for the imposition of a financial penalty on employers who fail to pay an award (though as yet there’s no date for implementation). And just this week BIS added: “We are also introducing a scheme whereby employers who receive [such] a penalty may be publicly named.” But the next government needs to return to this issue, as there is still more to do, and Labour should think about including it in its proposed ‘reform process’ led by the CBI and TUC (which would, one hopes, include others such as the ELA).
So, I was a very happy bunny over the Easter weekend, and I’m looking forward to reading the Labour and Liberal Democrat manifestos. Normal service will no doubt resume shortly.
[With thanks to Laurie Anstis for granting me permission to include the above extracts from the ELA briefing]