Is the introduction of fees for workers to access employment tribunals fair, or is it a poorly thought-out process, which could hinder access to justice?
Not surprisingly, employment solicitors are extremely anxious about the state of employment law and access to justice following the introduction of fees in employment tribunals.
But should other lawyers, and indeed the public, be equally exercised about what is happening to employment law? Going to work is a fundamental part of everyday life for a large amount of the population. Work is not just a source of income but is a positive and sustaining force in people’s lives. No one should be subjected to harassment, bullying, discrimination, or have their rights infringed by being overworked, denied of breaks or, worse, assaulted. If any of these events befall an innocent person, they should be entitled as of right to a remedy. In some circumstances, the individual may actually be a victim; is it therefore justifiable to charge a blameless victim £1,200 to seek justice when they have been assaulted or subjected to indecency or a harrowing campaign of race or sex discrimination?
We depend on those providing us with a service to do so honestly and with integrity. But what happens when, for example, a care worker we trust to look after our elderly relatives, abuses them? Which brave worker would be willing to blow the whistle and face dismissal? Should that person really face a bill for £1,200 to bring a claim? Is it not a price worth paying for the greater good to enable brave workers to blow the whistle, knowing that they would be able to access a remedy for free if they are punished for doing us all a favour by stopping the abuse of our elderly parents? In the new year’s honours list a nurse who blew the whistle in relation to practices at Stafford Hospital was awarded with an OBE. There are many others who are too afraid to blow the whistle and face financial hardship for doing so.
And what about the woman who goes to work each day to be sexually harassed or abused with sexual comments? Why must she render herself jobless to access a free claim, or do we just rationalise her decision to stay in the job with ‘if she doesn’t like it she can leave’?
Yes, it is true that there is a scheme of providing remissions for those who cannot afford tribunal fees. There are many employment lawyers who are clear it is a poorly thought-out process which is currently experiencing a number of difficulties in terms of when the claim is deemed to be accepted. In effect, seeking a remission may require a person to render themselves without income in order to avail themselves of it.
If somebody is being discriminated against whilst they are in employment, it is possible to bring a claim whilst remaining in their role. However, if they do not resign, they are unlikely to be able to access a remission for their fees. If they are earning a low amount, the choice is between paying the tribunal fee and feeding themselves and their families.
Unions have argued vociferously that access to justice for the most vulnerable workers has not been so poor for more than a generation and that they have been priced out of their rights. Whilst the argument is emotive, the allegation is that this is suppression of rights by costing them out of reach. The truth will emerge once the figures are released for the number of single claims being entered post-29 July 2013, when fees were introduced. A steep reduction year on year may well provide support for the unions’ arguments.
The changes to employment law have a cumulative effect on the access to justice. The introduction of a two-year service requirement to bring a claim of unfair dismissal has also meant injustices have increased for many. Some employers may routinely dismiss employees with less than two years’ service for gross misconduct, accusing them of horrendous acts. The employee in such cases has no remedy. They have less than two years’ service so cannot bring a claim for unfair dismissal. Their reputation is in tatters and they cannot apply for employment elsewhere as their previous employer is perfectly entitled to say in the employee’s reference that he/she was dismissed for gross misconduct.
Whilst we all recognise that in times of austerity savings need to be made in all parts of government expenditure, it cannot be beneficial to British workplaces that these cost savings have the unexpected consequence of making workplaces less secure for employees, creating a culture of inequality.
Just making it too expensive to bring a claim will of course reduce claims. But the same result could also be achieved by reducing the need to litigate. This could be done by increasing the incentives to employers to ensure better workplaces, with fairer systems and processes and greater employee engagement. Whereas previously there was balance between employers and employees because of the availability of remedies to both parties, the hype of red tape and the lie that the ‘system was weighted in favour of employees’, perpetrated by the ignorant, now threatens to destroy the synergy and the inter-dependent relationship between employers and employees.
Whereas previously a common goal was for both parties to row the boat in the same direction, now it is every man for himself. The risk is that workers will seek to ensure their own welfare, rather than aligning themselves with the success of the company. For those of us who represent employers, it is not an easy admission to make because we wish to protect businesses from the minority of vexatious litigants. However, a sound business case requires that employers value their employees, secure their loyalty and commitment, and get them 100% behind the company, sharing its goals and aspiring to prosperity via its success.
Whatever the outcome of the judicial review into tribunal fees, all of us as lawyers should be mindful of the importance of the workplace and the rights of all employees. There is of course a strong ethical case for ensuring that employees have rights and remedies alongside their obligations. It should not be contentious that employees are entitled to dignity and fairness at work.
However, for those of whom the ethical argument does not work, ensuring that employees’ rights are protected can be promoted out of selfishness and self interest, after all it must be a good thing to protect our working environment and that of our friends and our families. Working should be a good and worthwhile experience as well as enabling us to pay our bills.
Terry Falcão is a partner in the employment law team at Stephens Scown solicitors