Will the Justice committee prove to be au fait with access to justice?

We should perhaps take encouragement from the fact that, on the same day it published the transcript of its oral evidence session on the impact of the Coalition’s disastrous employment tribunal fees, the Conservative-majority Justice Committee of MPs also published a scathing report calling on ministers to scrap the Coalition’s disastrous criminal court charge. However, even a quick reading of the transcript reveals deep levels of ignorance and prejudice on the part of some committee members that may yet prevent delivery of a double-whammy to everybody’s favourite justice secretary, Michael Gove.

In particular, several Conservative members of the Committee appear unable to shake off their irrational fear of the patently non-existent Vexatious Claim Ogre. “What is the solution for the employer facing a vexatious complaint? What is your solution to that particular issue, which affects lots of small businesses around the country?” demanded Philip ‘filibuster’ Davies, blithely ignoring a mountain of actual evidence, from the 2007 Gibbons review of employment tribunals – which concluded that “weak and vexatious cases make up only a small minority of tribunal claims” – to any number of past statements by the Federation of Small Businesses (FSB) that the number of such businesses affected by a tribunal claim, vexatious or otherwise, is actually very small indeed.

In October 2014, for example, in its written evidence to the Small Business, Enterprise & Employment Bill committee, the FSB stressed to MPs that “only 3 per cent of our members were summoned before an employment tribunal between 2004 and 2009”, and in its oral evidence to the committee it happily noted that “a very small percentage of our members are damaged by tribunals, which is good news”. Indeed, as noted previously on this blog, at the time Coalition ministers decided (in 2011) to introduce hefty upfront claimant fees, the average private sector employer risked facing an ET claim about once every 27 years. Now, it’s about once every century. Can our valiant entrepreneurs really not cope with such minuscule risk? Maybe they should just stay in bed.

And before anyone says “yes, but 2004-09 is a long time ago”, Mr Davies himself had gone back to the last century to look for data that might prove the existence of the Vexatious Claim Ogre. In what must have been a frustratingly short intervention for a man used to talking non-stop for 52 or even 90 minutes at a time, Mr Davies stated that “between 1999 and 2005, the success rates for discrimination cases at employment tribunals were 28% for sex discrimination, 15% for race discrimination cases and 29% for disability discrimination cases. To most people, that would indicate that quite a lot of vexatious [claims] were being dealt with by the employment tribunals.”

Fortunately, Sybille Raphael of Working Families was on hand to point out to Mr Davies that his figures “do not take into account the far bigger number of claims that are settled, either during the tribunal process or before the tribunal process. They would not be settled if there was no tribunal there.” Shantha David of Unison noted that, in his written evidence to the Committee, the current President of the Employment Tribunals, Brian Doyle, had indicated “that only a very small percentage of claims can be [readily] identified as weak or unmeritorious, and that we need to be a bit careful about the way in which we bandy around the term ‘vexatious’.” Furthermore, Ros Bragg of Maternity Action noted that “we see no evidence that fees are effective in removing weak or vexatious claims”, and Rebecca Hilsenrath of the EHRC agreed that “there is no evidence of the fees having an impact on vexatious claims.”

I suspect that Sybille, Shantha, Ros and Rebecca would be more likely to convince the Pope that God does not exist than to rid Mr Davies of his faith in the Vexatious Claim Ogre, but some of the other myths about fees propagated by Matt Hancock and his mates in the tabloid press took a good pasting during the evidence session. Front-line practitioners Kate Booth of Eaton Smith LLP, Stephen Cavalier of Thompsons solicitors, and Shantha David all confirmed there has been no significant displacement of ET claims (such as breach of contract claims) to the county courts. And, in what may well prove to be the killer evidence to the committee, Kate Booth – who acts for both employees and employers – laid to rest the Ministry of Injustice’s canard that fees would “encourage the use of alternative dispute resolution services, for example, Acas conciliation”:

I sit on both sides of the fence. When I advise an employer, why would they engage in early conciliation? You wait for the employee to pay a fee. Ultimately you want to call their bluff – are they prepared to put their money where their mouth is? – so you sit back and see whether they do it. There is absolutely no incentive to engage early, unless you know you are going to go down. Why would you?

Stephen Cavalier confirmed that “fees have had the opposite effect [to that intended by ministers] – employers sit on their hands and do not engage”, while Sybille Raphael told the committee that, in her experience, “employers [now] wait until the very end – until the hearing fee is paid, three weeks before the hearing – to engage in meaningful discussions, wasting everybody’s time and the tribunal’s resources.” And Shantha David noted that “the average clearance times for multiple [claimant] cases are actually longer than they used to be.”

On fee remission, Emma Wilkinson of Citizens Advice noted that “the complexity of the eligibility requirements is particularly harsh for vulnerable [CAB] clients,” while Sybille Raphael told the Committee that “in our view the fee remission system is very unfair. For instance, if you have just above £3,000 in savings – I believe that we want to encourage people, especially low-paid employees, to save – you cannot benefit from fee remission. We have terrible cases of women who were sacked the minute they told their employers that they were pregnant, but cannot bring a claim for unfair dismissal because there is no way that they can spend nearly half their savings on a highly uncertain employment tribunal claim – especially when we know that, even if they win, there is a 50% chance that the employer will not pay anything, so she would be £1,200 worse off for having dared to claim her rights.”

On the question of whether the cost of the employment tribunal (ET) system should be “moved away from the taxpayer on to those who can afford it”, Sally Brett of the TUC gave the committee members a quick lesson on the wider social and economic benefits of the system:

Often a division is made between taxpayers and users of the ET system, but all taxpayers are potentially users of the ET system, [which is] a very important backstop to ensure that basic rights such as the right to the minimum wage, rights to paid holiday, rights to time off and maternity leave, and rights not to be unfairly dismissed or discriminated against are effective.

Those rights bring important social and economic benefits for this country. They ensure that more people can participate in the labour market without facing unfair discrimination. They give vulnerable workers more job security and stability of income. If there is not that ultimate sanction that employers may face if they breach employment rights, it encourages rogue employers to flout the law, which undermines and puts at a competitive disadvantage businesses that are striving to meet the [statutory minimum] standards or to exceed them and use good practice.

Hopefully, such evidence will help steer the committee towards the only just outcome of its inquiry, even if some of its Conservative members would personally much prefer to accept the laughable oral evidence of James Potts of Peninsula Business Services. Despite having to concede to Andy McDonald MP that he is “not au fait with the particular nuances of the [fee remission] system”, Mr Potts stuck to the line first set out in his firm’s evidence-free written evidence to the committee, that up is down and down is up, and “there really is not an access to justice issue” with fees because “access to justice is through the remission system” – the system, that is, with which he is not au fait.

Thieving an idea from FT journalist and legal blogger David Allen Green (see link in first paragraph, above), I can only imagine the conversation went something like this:

Tory member of the Committee: “So, this inquiry is to give Michael some political cover for a retreat?”

Bob Neill (Committee chair): “That’s right.”

Tory member: “In which case, we need the pro-fees evidence from the employer lobby to be really crap.”

Bob Neill: “We do.”

Tory member: “Peninsula Business Services?”

Bob Neill: “Make the call.”





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