As the government announced plans to introduce fees for using employment tribunals (with a consultation seeking views on two options) it was clear that justice minister Jonathan Djanogly believes too many spurious claims are being brought against businesses under the current system.

His remarks also showed that he is acutely conscious of the importance of business - and job creation - to economic recovery.

But will government attempts to bring in a business-friendly measure come at the expense of genuine claimants? Introducing the consultation, Djanogly pointed out that ‘promoting growth is this government’s number one priority’.

He said: ‘Employment tribunals… are particularly in need of reform. Bringing a claim or appeal to these tribunals is currently free for users, with the full £84m annual cost of running the tribunals being met by taxpayers, despite the fact that most of them will never use the service.’

Hardly a clinching argument; I’ve never been rescued from a burning house but I’m not calling for the abolition of the Fire Service. Moreover, while most taxpayers may not actually use the employment tribunals, it could be said that anyone who is an employee still benefits from them, as their existence encourages good behaviour by their employer.

Djanogly went on: ‘It is of course vitally important that employees have meaningful access to justice. But employers complain that, at its worst, the operation of the current system can be a one-way bet against them, with parties inadequately incentivised to think through whether a formal claim really needs to be lodged, or whether it could be settled in other ways such as conciliation, mediation or informal discussions.

‘Though the vast majority of awards in employment tribunals are relatively modest (the median award is £5,000) business tells us that the fear of high awards being made against them creates uncertainty and can put them off taking on new staff.’

Just as in the rest of civil litigation, Djanogly is giving claimants a sharp-elbowed nudge towards using (cheaper) mediation rather than the courts or tribunals. The minister is a great believer in mediation, though critics would point out that it is not suitable in all cases, and - importantly - it does not provide any cases through which the law can develop, with the wider benefit that that brings.

The biggest worry about tribunal fees is that they could act as a barrier to the genuine claimant who has been ill-treated and sacked by his employer, and as a result does not have the funds needed to pay the fees (which could range from £200 to £2,350, depending on the size of claim and the model adopted by government). Indeed, it would seem unfair to expect an employee with, for example, a straightforward claim for non-payment of wages, to have to pay a fee upfront before they can recover the money.

The Ministry of Justice is alive to this fear, and has addressed it by providing that the fee will be either partially or entirely waived for those under a certain income threshold (detailed in Section 5 of the consultation.

But it will surprise no one that this fee level (the HM Courts & Tribunals Service remission system, also used to calculate legal aid eligibility) is set depressingly low. Those on income support and some other benefits will automatically have their fee waived, but claimants who have gone out and got another job will be subject to the means test (penalising them for having done so, you could argue).

The whole fee will be waived if the claimant has an income below £13,000, or £18,000 joint income if they live with a partner. The thresholds are slightly higher if they have children. Under a second test, no fee will be payable if the claimant has what is considered ‘disposable income’ of £50 a month or less. Income above this level may qualify for a discount on the fee.

With such low thresholds, it is hard to believe that there will not be some claimants - for example, those hovering just above the line - who will not be deterred from pursuing their legitimate claim. Djanogly’s efforts to improve the environment for job-creating businesses - at a time when government has little else to offer them - are understandable. But his assertion that the fees will not act as a barrier to poor claimants seeking justice would have carried a lot more weight if the levels hadn’t been set quite so low.

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