ET fees income from single claimants (wonkish)

Last week’s publication by the Ministry of Injustice of the latest set of quarterly tribunal statistics, covering October to December 2014, was in many ways a damp squib that added little to what we already know about the impact of ET fees since July 2013. ET claim/case numbers continued to bobble along at about one-third the pre-fees level, and the claim outcome percentages – which might have enabled us to pour further scorn on the assertion of Matthew Hancock and others that only weak or vexatious claims have been deterred by the fees – were rendered meaningless by the striking out of one exceptionally large multiple claimant airline case involving some 243,000 claims.

The only real cause for excitement – yes, I’m that sad – was the inclusion, for the first time, of figures on applications for and grants of fee remission (or ‘fee waivers’, as ministers have taken to calling it). From the four tables in Annex D, covering the five quarters up to September 2014, we learnt that 95 per cent of remission grants to single claimants have been for full remission, and only five per cent for partial remission. And we learnt that, while 48 per cent of the single claimants from whom the issue fee was requested applied for remission, only 21 per cent of those from whom a hearing fee was requested did so.

With a bit of work, the figures also allow us to unpack – to some extent at least – the Ministry’s previous statement that gross annual fee income is running at about £12 million, of which some £3.2 million is “foregone in remission”. Because there is enough data spread over the four tables in Annex D to construct the following table for gross and net fee income from, and remission to, single claim/cases (but not multiple claimant cases, or EAT cases) over the 12-month period October 2013 to September 2014.

Issue fee (single claims/cases)
Gross income (£) Remission (£) Net fee income (£)
Type A 619,360 102,720 516,640
Type B 3,906,250 794,000 3,112,250
Total 4,525,610 896,720 3,628,890
Hearing fee (single claims/cases)
Gross income (£) Remission (£) Net fee income (£)
Type A 286,005 25,415 260,590
Type B 3,984,775 1,312,425 2,672,350
Total 4,270,780 1,337,840 2,932,940
Total (£) 8,796,390 2,234,560 6,561,830

(NB – To arrive at these figures, I assumed that the five per cent of claimants granted partial fee remission received an average remission of 50 per cent of the relevant fee.)

From this, we can see that single claimants in the ETs contribute £8.8 million (73 per cent) of the Ministry’s gross income of £12 million, and £6.56 million (75 per cent) of the Ministry’s net income of £8.8 million. And they benefit from £2.23 million (70 per cent) of the £3.2 million foregone in fee remission. The other 25 per cent (£2.2 million) of the Ministry’s net fee income comes from claimants in multiple claimant cases, and appellants to the EAT.

We can also see that, of that £8.8 million contribution to the Ministry’s gross fee income, £7.9 million (90 per cent) comes from claimants making Type B claims (e.g. discrimination, unfair dismissal). Similarly, of the total £2.23 million foregone in remission, all but £128,000 (5.7 per cent) is granted to those making Type B claims.

Well, I think that’s interesting, and if your name’s Michael Reed I suspect you will too. However, in terms of what might happen next, it’s probably much less significant than this tweet, posted on 11 March but which I only stumbled upon today:

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Which conveys a somewhat different message to these and similar tweets by other Labour shadow ministers in recent months:

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No wonder then, that Sadiq Khan got the following response from junior injustice minister Shailesh Vara when he raised the issue of tribunal and court fees in the House of Commons on Tuesday:

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Followed shortly after by this response from the Lord of Injustice himself, Chris Grayling:

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And then there’s former shadow attorney general Emily Thornberry, who yesterday re-iterated (during her Westminster Hall debate on equal pay) her proposal that equal pay claims be exempted from ET fees for five years – the clear implication being that she would be happy for fees to continue for other claims.

Sadly, working out what the three tweets above, and Emily Thornberry’s proposal, might tell us about the policy on ET fees of any future Labour government is beyond my tiny brain. So I’m going to bed.

At remission control, the lights are on but nobody’s home

Previously on this blog, I have examined parts of a rather grand dismissal of concern about the impact of ET fees by the Parliamentary Under-Secretary of State for Justice, Shailesh Vara. Responding to a question by Diana Johnson MP, in which Ms Johnson noted the drop in ET sex discrimination claims of some 84 per cent since July 2013, Mr Vara said:

The situation is a lot more complex than the honourable Lady makes out. First and foremost, anyone who does not meet the financial criteria has a waiver and can go to court. Secondly, there have been a lot of pre-determinations by Acas. Employment is going up and there are fewer applications. There are a lot of factors and she does herself no credit by simplifying matters.

In this post I’m going to focus on the hapless junior minister’s reference to what he calls ‘a waiver’, but which most of us know as fee remission.

Now, as The Smiths sang, it is easy to laugh and to hate, but it takes guts to be gentle and kind. So let’s be gentle and kind to Mr Vara, and recognise that – terminology aside – what he says on fee remission is all of a piece with what other ministers have said on many occasions. Here, for example, is business secretary Vince Cable in November 2011, during the speech in which he announced the Coalition Government’s intention to exploit a legal power slipped through by Labour ministers in 2007, in order to shamelessly introduce ET fees without any parliamentary debate on the principle of doing so:

I want to make it very clear that for those with a genuine claim, fees will not be a barrier to justice. We will ensure that there is a remissions system for those who need help.

And, most recently, here is BIS minister Baroness Neville-Rolfe in the House of Lords earlier this week (during debate on the Small, Business, Enterprise & Employment Bill):

It is important to emphasise that the Government have been very careful to ensure that fee waivers are available for those people of limited means in order that they are not excluded from seeking redress through tribunals.

Unfortunately, anecdotal evidence from employment law practitioners, and the very limited amount of statistical data released by Mr Vara’s Ministry of Injustice to date, indicates that fee remission has done very little indeed to protect the access to justice of “those of limited means” since July 2013. As described elsewhere on this blog, until this week pretty much the only published data was that on grants of remission set out in the Ministry’s partial reply in October last year to a parliamentary question by shadow business secretary Chuka Umunna. Together with a bit more information on grants of remission included in the written evidence of a Ministry official in defence of UNISON’s second application for judicial review of the fees regime, that PQ reply told us that just 1,946 (10.4 per cent) of all 18,660 single claimants in the 11-month period 29 July 2013 to 30 June 2014 obtained some remission (full or partial) in relation to their case.

However, this week, in reply to a further parliamentary question by shadow BIS minister Ian Murray, the Ministry provided figures on grants of remission for July to December 2014. This tells us that there were 3,459 remission grants to single claimants in that period. However, we know from the breakdown given in the Ministry official’s evidence to the High Court that some 10 per cent of those grants will have been in relation to the appeal fee. And as a claimant granted remission for the appeal fee is also very likely to have received remission for the issue fee, those grants are double-counted. So we need to reduce the figure of 3,459 by 10 per cent, to 3,113. (Yes, the ’10 per cent’ may have gone up or down in recent months but, as there’s no way of telling from the Ministry’s reply, let’s just run with it).

I imagine Mr Vara would want us to dwell on the fact that, applying this 10 per cent reduction to the most recent quarter for which both the ET claim and remission grant figures are available – July to September 2014 – about 1,400 (33 per cent) of the 4,252 single claimants obtained full or partial fee remission. Which is a lot more respectable than the 10.4 per cent figure above.

To my mind, there are three possible explanations of this increased respectability: the number of remission applications has increased in recent months; or the Ministry’s decision-making has become less severe in recent months; or the extent of double-counting of claimants granted remission in respect of both the issue and the appeal fee has increased in recent months.

Indeed, we do know that the Ministry relaxed the evidence requirements for fee remission applications at the end of June 2014, and we can expect that to have increased the success rate, even if only slightly. And I would’t be surprised if the extent of double-counting has increased, but we won’t know until the Ministry provides a breakdown of remission grants to single claimants by issue fee and hearing fee.

Unfortunately, we also have no idea how many applications for fee remission were made, and how many were refused, in any of these time periods, because the Ministry of Injustice paid some £2m for a new ‘ET fees & remission’ database that, thanks to a lack of functional reporting tools, has yet to produce any reliable data, almost 18 months after it went live on 29 July 2013. (The above figures on remission grants are taken from a separate, finance system database). It seems we have to wait at least until publication of the next set of quarterly tribunal statistics, in early March, for the first figures on fee remission applications, grants, and refusals from that database.

dilbertproject

Whatever, the latest figures on remission grants are more meaningfully judged not against the actual number of claims in that period, but against the number of claims we might have expected to see, had fees not been introduced in July 2013. In my previous post on the other parts of Mr Vara’s reply to Diana Johnson, I set out two alternative (but ultimately very similar) projections for the number of single claims we might have expected to see in 2013/14.

Applying the most recent remission grant figures (for the six months July to December 2014) to the average of those two projections, we get a figure of 12.4 per cent of the single claimants we might have expected over a full year obtaining remission in relation to their case. Which is not so respectable, and certainly still well below the 31 per cent that the Ministry predicted in late 2013, in its final impact assessment of the (revised) remission scheme.

So, as with the rest of Mr Vara’s reply to Diana Johnson, the Parliamentary Under-Secretary of State for Justice does himself no credit by claiming that “anyone who [meets] the financial criteria has a waiver and can go to court”. The fee remission scheme appears to be protecting access to justice for only one in eight of the workers we could expect to be issuing a (single) tribunal claim, had fees not been introduced.

Which is entirely to be expected, given the complexity and narrowness of the eligibility criteria – the fee remission application form and explanatory notes run to 30 pages. Perhaps most significantly, any claimant in a household which has been prudent enough to build up modest savings of £3,000 or more will not qualify for any remission. So much for all those ministerial speeches about the need for people to take personal responsibility and put money aside for rainy days. If you and your partner have saved up £4,000 to help with the cost of the baby you’re soon to have, and then your employer unlawfully selects you for redundancy because you are pregnant, you’re probably not going to risk £1,200 of those precious savings pursuing a tribunal claim.

Finally, if you’re wondering why I haven’t included a nice little graph charting the number of remission grants in each month from July 2013 to December 2014, it’s because the figures for July to December given by the Ministry in its reply to Ian Murray are not compatible with the figures for the 11 months up to June 2014 given by the Ministry in its reply of 15 October to Chuka Umunna. The former include grants in multiple claimant cases (just 31 in six months), whereas the latter include all the claimants in multiple claimant cases (1,530 in 11 months), though we only know this from the Ministry official’s evidence to the High Court.

 

Earth calling Remission Control … come in, Remission Control … is anyone there?

Back in January, I noted on this blog that the tribunal fees remission scheme was providing ministers with a very small fig leaf as they sought to fend off increasingly alarmed suggestions that the hefty employment tribunal fees introduced in July 2013 were blocking workers’ access to justice. And today we learned – from the Ministry of Justice’s reply to a written PQ by shadow business secretary Chuka Umunna – that just 3,913 ET claimants (a mere six per cent of all claimants) were granted fee remission between 29 July 2013 and 30 June 2014 [but see also Postscript, below].

As the super-brained and hyper-cool Michael Reed of the Free Representation Unit was first to point out – please note that Michael and I were separated at birth, but he had the more privileged upbringing – the Ministry’s reply raises a number of questions.

The first being, why did it take the Ministry three months to answer the PQ, which was tabled by Umunna on 15 July? It’s not as if the PQ was especially complicated. It simply asked how many ET fee remission applications have been made and granted since 29 July 2013, and at what administrative cost. You’d think a cost-cutting Justice Secretary like Chris Grayling would have made sure he had such data at his fingertips.

The second question – posed by my long lost twin in his blog post – is: why did grants of fee remission increase so substantially from March this year, despite the number of ET cases (and claims) continuing to plumb the depths? From just 144 in December 2013, and 114 in February 2014, grants of remission shot to 753 in March, and 754 in May. Did awareness of the fee remission scheme (and so the number of applications) suddenly increase? Or did HMCTS’s decision-making suddenly become less severe? We simply cannot say, because we don’t have the necessary data on fee remission applications.

And that takes us to a third question: why was the Ministry unable to say, in its reply to Umunna’s PQ, how many fee remission applications were made between 29 July 2013 and 30 June 2014?

The long answer to this question is set out in my multi-part post on this blog in February. In a nutshell, in 2013 the Ministry of Justice shelled out some £2m on a shiny new ET fees & remission database with, er, no reporting tools. That is, an ET fees & remission database incapable of producing any basic data such as the number of fee remission applications made. And, as well as pocketing £2m of hard-working taxpayers’ dosh, the company that delivered this duff database – Jadu Ltd – got nominated for an award. Did someone mention justice?

So perhaps the most shocking revelation of the Ministry’s reply to Umunna’s PQ is that, 15 months after Jadu’s £2m ET fees & remission database went live in late July 2013, those basic reporting tools still don’t exist (or, at least, have “not yet been assured to sufficient standards”). Who the **** in the Ministry is overseeing this project? Clearly not the same minister or official overseeing the legal aid budget.

And the last question is, how does Michael always get his blog post out first? Do they not have any actual work to do at the Free Representation Unit? You know, representing all those vulnerable workers subjected to wage theft by rogue employers in their tribunal claims. Oh, hang on …

Postscript (21 October): Today we learned, from the Lord Chancellor’s evidence to the judicial review of his ET fees regime in the High Court, a few details on remissions that the Ministry of Justice somehow managed to leave out of its reply to Chuka Umunna’s PQ. It seems that just 2,178 (56 per cent) of the 3,913 remissions granted between 29 July 2013 and 30 June 2014 were to individual (i.e. single) ET claimants – the other 1,735 remissions being to claimants in multiple claimant ET cases (1,530) and to applicants to the EAT (205). I’m somewhat surprised that so many remissions have been to claimants in multiple claimant cases, but let’s leave that point for another day. For we also learned that the figure of 2,178 remissions granted to single claimants includes 232 remissions of the hearing fee.

While we cannot be certain without seeing more detailed figures, it seems reasonable to assume that very few if any of the 232 claimants granted remission in relation to the hearing fee will not also have had remission for the issue fee. In other words, 232 those remissions were double counted in the total of 2,178 claimants. Which means only 1,946 (7.7 per cent) of all 25,284 single claimants obtained some remission (full or partial) in relation to their case.

Now, 7.7 per cent is a long, long way below the 31 per cent predicted by the Ministry of Justice in September 2013, in its final impact assessment of the remission scheme, even before we allow for the much greater fall in ET claim/case numbers than the Ministry anticipated. In 2012/13 there were 54,704 single claims, and it is against such figures that grants of remission should really be judged, as that is (roughly) the number of single claimants we could have expected in the 12 months up to June 2014 were it not for the deterrent effect of fees. That is, only 3.6 per cent of those who might have been expected to make an ET claim in the 12 months up to June 2014 had their access to justice protected by the fee remission scheme.

The ET fees remission scheme has so far been a very small fig leaf.

ET fees income: don’t spend it all at once, Chris

In recent months, faced with a strong aversion to transparency and openness on the part of the Ministry of Justice, there has been much speculation about just how much money the Ministry is making from its justice-denying ET fees regime. Well, there has been in my house. Back in 2012, officials indicated that they were looking to receive at least £10 million a year in ET fees, whilst the Ministry’s original ‘cost recovery’ target of 33 per cent implied an annual fee income nearer to £25 million. But, with the startling drop in the number of claims since the introduction of fees in July last year, even the lower of these two figures has looked increasingly unrealistic.

In May, the justice minister, Shailesh Vara, declined to answer a parliamentary question by shadow justice minister Andy Slaughter seeking a fee income figure to date, on the grounds that “financial information relating to fees and remissions in the ET system will be published [in July] by HMCTS in its Annual Report and Accounts”.  Well, that 108-page report, covering the financial year 2013-14, has now been published by HMCTS.  And, buried away on page 85, there are some interesting figures on ET fee income and remission up to 31 March 2014.

In the eight-month period 29 July 2013 to 31 March 2014, gross income from ET fees was £5.149 million, of which £0.680 million (13.2 per cent) was foregone in fee remission.  That represents an actual ‘cost recovery’ of just 6.7 per cent of the ET system’s total cost of £76.364 million, well below the Ministry’s original target of 33 per cent.

The proportion of fee income foregone in fee remission (13.2 per cent) is also strikingly low, given that, as late as September 2013, the Ministry was predicting that 31 per cent of all ET claimants would qualify for full (25 per cent) or partial (six per cent) fee remission.

Furthermore, we already know, from one of the parliamentary questions by Andy Slaughter that the Minister did deign to answer in May, that the Ministry spent £4.4 million on new IT systems to “support the processing of fee receipts and remission applications across the ET system”. Take that away from the net fee income (gross income – remission) of £4.469 million, and Chris Grayling was left with just £69,000 to cover the staff and other operational costs associated with processing fees and remission applications over the eight months up to 31 March 2014.

In short, it seems highly likely that the Ministry made a net loss on ET fees in 2013-14. Clearly, things can only get better from now on, as most of that capital expenditure of £4.4 million will not be repeated in 2014-15 and beyond. And, of course, the above figures take no account of the operational cost savings to the Ministry associated with tumbleweed blowing through near-empty ET hearing rooms – the real policy intention. As recent speeches by BIS minister Matt Hancock and others have indicated, the Conservative side of the Coalition Government, at least, appears to be very pleased with the overall impact of the ET fees regime, including the 80 per cent drop in claims.

So I don’t expect Chris Grayling to be the least bit bothered about the somewhat less than impressive financial figures noted above. To my mind, their primary significance lies in the implications for any alternative fee regime that might be brought in by any alternative government elected in May 2015. Assuming the number of claims remains at much the same (low) level as now, a net fee income over eight months of £4.469 million implies an annual net income of some £6.7 million. Unless that £6.7 million can be found from savings made elsewhere in the Ministry’s budget, any alternative fees regime is likely to have to generate at least most of it.

Then again, the Lord Chancellor may be humiliated by UNISON in the Court of Appeal later this year, and this blog post will not even rate a footnote in history. I’ll settle for that.

ET fees: ball back in Lord Chancellor’s court

In February, when rejecting UNISON’s judicial review of the employment tribunal fees regime introduced last July – on the grounds that it was simply too early to reach a firm conclusion on the impact of the fees, the only available statistics being provisional figures for the month of September – the High Court noted that “if [these provisional figures] are anything like accurate, then the impact of the fees has been dramatic”. And the judges suggested that, should the Lord Chancellor’s optimism that the number of ET claims would soon bounce back to more ‘normal’ levels prove unfounded, then they would “expect the Lord Chancellor to change the [fees regime] without any need for further litigation”.

Within weeks, the accuracy of those provisional figures was confirmed, with tribunal statistics for the three-month period October to December (Quarter 3 of 2013/14) showing a dramatic fall in the number of ET claims by individual claimants, from an average of 4,460 per month in the nine months before the introduction of fees in July 2013, to just 1,000 in September, 1,620 in October, 1,840 in November, and 1,500 in December.

UNISON has since been granted permission to appeal to the Court of Appeal, but as of today the ball is back in the Lord Chancellor’s court, with the latest set of quarterly tribunal statistics – for the period January to March 2014 (Quarter 4 of 2013/14) – showing no significant rebound in the level of ET claims since December.

The headline number of ET claims, which includes both single and multiple claims and which was down 78 per cent in Quarter 3, was down again in Quarter 4, by 83 per cent compared to the same quarter a year ago. Based on past experience, this is the figure that will dominate reporting of the new set of statistics. However, as is clear from the following chart, this figure is arguably not the most reliable indicator of the impact of fees, given its evident volatility over time due to large variations in the monthly number of multiple claims (that is, the total number of claimants in multiple claimant cases). That said, the impact of fees seems reasonably clear.

Chart 1: ET claims (singles & multiples), July 2012 to March 2014.

Chart 1

The impact of fees since July 2013 is much clearer when we look at the number of single claims by individual workers, which was down 64 per cent in Quarter 3, and was down again in Quarter 4, by 58 per cent compared to the same quarter a year ago. While the Ministry of Justice will no doubt be highlighting the 13 per cent increase from Quarter 3 to Quarter 4, at 1,763 the average monthly number of claims in Quarter 4 is still just 39 per cent of the average over the nine months prior to July 2013 (4,460).

Chart 2: ET claims (singles), October 2012 to March 2014

Chart 2

Somewhat surprisingly – to me at least – the number of multiple claimant cases, which in theory should be less affected by fees, has also fallen dramatically since July 2013. Down by 65 per cent in Quarter 3, from 1,390 to 485, the number of such cases was down again in Quarter 4, by 68 per cent compared to the same quarter a year ago.

Chart 3: ET multiple claimant cases, October 2012 to March 2014

Chart 3

Given that claimants in the very largest multiple claim cases each pay only a tiny fraction of the fees, the most obvious explanation for this fall in the number of multiple claimant cases would be that fees have cut out those cases with relatively small numbers of multiple claimants. However, this would imply a significant increase in the average number of claimants in multiple claimant cases. And, as the following chart shows, with the exception of September (when, presumably, there were one or two very large cases), the average number of claimants in multiple claim cases has not only not risen, but has actually fallen since July 2013.

Chart 4: Average number of claimants in multiple claimant cases, July 2012 to March 2014

Chart 4

So, something else would appear to be going on here. Have the unions run out of equal pay cases?

Indeed, for me the main story from this latest set of statistics is that fees have had a dramatic impact not just on the number of single claims by individual workers, but also on the number of multiple claims and multiple claimant cases – which, in theory, should have been much less affected by fees.

Chart 5: ET claims (multiples), October 2012 to March 2014

Chart 5

All in all, it’s hard to see how the Lord Chancellor can credibly deny that the introduction of hefty, upfront fees in July 2013 has had a dramatic impact on the number of claims – both singles and multiples. Which means, if he does not now reform the fees regime (and substantially reduce the level of fees), he is likely to have to do so following an embarrassing defeat in the Court of Appeal at the hands of UNISON later this year (the appeal is currently scheduled for hearing sometime between 10 September and 10 December 2014).

The incredible shrinking fee remission fig leaf

In response to extensive criticism of the fees regime since July 2013, ministers have argued that access to justice is protected for low-income claimants by the associated fee remission scheme. However, the only figures on fee remission applications that the Ministry of Justice has been willing to release to date – covering the period up to 31 December – suggest that only about six per cent of all ET claimants obtain any fee remission.

According to these figures, provided by the Ministry in response to a series of parliamentary questions by shadow justice minister Andy Slaughter MP, just 600 “individuals or groups of individuals” were granted fee remission between 29 July and 31 December, while 1,800 fee remission applications were rejected. And in that period there was a total of 10,208 single claims (9,305) and multiple claim cases (903). So remission was applied for in just 23 per cent of all cases, and three out of four of those applications were rejected.

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 ET claimants would be eligible for full (25 per cent) or partial (six per cent) fee remission.

In short, the fee remission scheme has so far proven to be a very small fig leaf indeed, and seems unlikely to provide the Lord Chancellor with much cover in the Court of Appeal.

The one in which the Minister says it does not cost £1200 to pursue an ET claim for discrimination

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.

Tribunal fee remission: a very small fig leaf?

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.