How Unison overturned the government’s tax on justice.
Oh yes! Supreme Court slaps down Chris Grayling’s spiteful, unlawful Employment Tribunal fees designed to stop people enforcing their rights” (The Secxret Barrister). “I don’t want in any way to be hyperbolic, but the Supreme Court ET fees decision may be the most important employment case of my lifetime” (Michael Reed, legal officer and writer).
These are just some of the reactions on the day the government’s policy on employment tribunal fees was overturned by Unison at the Supreme Court on 26 July 2017.
The introduction of employment tribunal fees four years earlier on 29 July 2013 had had an immediate effect to dissuade thousands of workers to challenge unfair treatment. But it would take several court battles before Unison would win its fight on grounds it was unlawful. Safety Management spoke to the solicitor who ran the case and a victim of the system to find out more.
Employment tribunals were established under the Industrial Training Act 1964. They are the chance for any worker to challenge types of unfair treatment at work, including a range of concerns of relevance for health and safety. Also, race and sex discrimination which, if unchallenged, can contribute to making a workplace less safe and, fuel stress and poor mental health at work.
‘Weak or vexatious claims’
So, why were fees introduced? Firstly, the Judiciary was facing a 34 per cent reduction to its budget from 2010-11 to 2015-16. Workers paying tribunal fees would help cover the running costs of their own cases. In total, fees would save £84 million in annual costs of running the tribunal, the Coalition government said.
Secondly, the government said fees would prevent ‘unmeritorious claims [that] consume valuable judicial resources’ and would deter ‘weak or vexatious claims’.
“Our goal is to encourage parties to think through whether disputes might be settled earlier and faster by other means,” explained the forward to the 2011 consultation. These other means included suggestions like resolving the dispute within the workplace, or via mediation, or conciliation.
£1,200 – the cost of discrimination
The amount workers had to pay was dependent on the ‘value’ of the worker's claim. For example, a range of grievances were listed as either track 1, 2 or 3 claims in the consultation.
Working time regulation disputes, holiday pay and rest breaks, as well as claims relating to health and safety, were all ‘low value’ track 1 claims (later called Band A). It cost a worker £390 in total to bring these claims. Discrimination disputes – sex, race, and disability – and equal pay were put into the Band B costing workers £1,200 in total. The theory was that such cases were complex and took more of the court’s time up, so fees needed to be higher.
The policy had an immediate impact on all working people. Even in the immediate months after the fees, from July to September 2013, there was a 56 per cent drop in all claims, compared to the same period the previous year. By 2016, there was a 70 per cent drop across all claims made. The government said in its January 2017 Review of the introduction of fees in the Employment Tribunals that all this showed its objectives had been met – fees were contributing millions of pounds towards running the system, meanwhile people were using alternative means of dispute resolution.
Impact on vulnerable workers
However, despite the drop that happened almost immediately, it was difficult for Unison to prove fees were having a negative effect. We spoke to Shantha David, the solicitor who ran the case, to find out more
“Unison’s main arguments were that the fees regime hampered an individual’s access to justice, that it breached the EU principle of effectiveness and indirectly discriminated against women,” says Shantha. What they found and successfully demonstrated revealed the impact fees had had on the whole workforce over the years. Their arguments also showed that fees disproportionately affected specific groups of vulnerable workers.
Certain types of claims attracted no monetary remedy, such as claims asserting an individual’s right to rest breaks, or a statement of an employee’s terms and conditions. “Low value claims dropped off a cliff. It made no sense paying £390 to get an employer to pay unpaid wages of £100, in an environment where employers only pay 53% of all successful employment tribunal (ET) awards”, says Shantha.
Another huge failing in the fees system was the impact on women. Unison argued successfully that, because most of the high value claims were claims more likely to be brought by women – such as sexual harassment, in the workplace – the high fees in Band B were indirectly discriminatory. Again, figures really bore this out. Sex discrimination claims dropped by 53% from 2012/13 to 2016/17, equal pay claims even more; from 10,467 in 2016/17 compared with 23,638 in 2012/20– a drop of 126%.
The Supreme Court ruled that: “The Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher fees for type B claims put women at a particular disadvantage, because a higher proportion of women bring type B than bring type A claims.”
As if all this wasn’t enough, there were numerous problems with the operation of the system. The government had said it would protect access to justice for those who could not afford to pay the fee by subsidising their costs. But the remissions scheme they drew up was woefully inadequate, says Shantha: “You could earn national minimum wage and still not get assistance with your fees, along with the fact that the scheme itself was very complicated”. A single person earning just £1,085 per month (just over £13,000 per annum) would not be eligible under the terms produced. Very few people knew about it, let alone applied for it showing its limited effect.
In addition, mandatory early conciliation through ACAS (Advisory, Conciliation and Arbitration Service) was enforced in May 2014 to encourage cases to be settled without recourse to tribunal.
In reality, the system was ripe for abuse, as independent tribunals adviser John Ogden tells us of a recent case: “My client was not a strong character and the process of just going through a tribunal was daunting to him. The company [which would not co-operate in early conciliation] banked on the fact he wouldn’t want to take it forward to tribunal, as vast numbers of companies would I suspect.”
How Unison won it
Unison’s win is an extraordinary feat considering that at first its position looked unwinnable. Its case failed the judicial review at the High Court twice and the two appeals in Court of Appeal over the four years.
Lord Justice Underhill, in rejecting Unison’s 2015 appeal said: “We would underline the obvious: there is no rule that forbids the introduction of a fee regime.” Yet, what persuaded the Supreme Court that fees were unlawful was Unison’s original contention that courts must not make it impossible, or excessively difficult, to exercise individual rights conferred by law. How did this happen?
Access to justice
Access to the courts and justice has its roots in the Magna Carta, written in the 13th century. The Supreme Court referenced the law several times before delivering the verdict that: “The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice.” It said it had the effect “as soon as it was made,” and did not need any more evidence: it was “unlawful and must be quashed.”
In the judgment it explained why the fall in claims was enough to make the ruling. “While the [government’s] Review Report fairly states that there is no conclusive evidence that the fees have prevented people from bringing claims, the court does not require conclusive evidence: it is sufficient in this context if a real risk is demonstrated. The fall in the number of claims has in any event been so sharp, so substantial, so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.”
The particularly contemporary relevance of the Supreme Court’s verdict is in the context of Brexit. The Supreme Court could only knock down a law made by government because of its position in the hierarchy, explains Paul Almond, Professor of law at the University of Reading. “Generally it’s the Supreme Courts that have the greater clout when it comes to making a definitive decision that a fundamental norm has been violated,” he said.
“For a lower court to do that – what has been an accepted government policy has actually been for the last four years breaching fundamental human rights for people who are subject to it, is a significant political decision. It’s the Supreme Court that has the ultimate legitimacy to stand and say – the policy you’ve enacted is fundamentally not legal.”
When it comes to Brexit, which will give government sweeping powers to alter worker protections if it so chooses in the future, the role of the Supreme Court in keeping it in check will become more vital, he says.
Victory and the aftermath
Unison celebrated the win in court as a victory for workers’ rights and as the most significant employment case in recent history. Workers are in the process of being reimbursed up to £32 million in fees – about the same that the government saved by introducing them in the first place. There are also some signs that the numbers of claims lodged in the Employment Tribunals are picking up. “Anecdotally we have heard of a rise in claims in some areas, for example, we are aware that in one region they have gone from receiving 20 ET claims per month to approximately that number per week. However, it is too soon to say whether this is a blip or a trend,” says Paul McFarlane, chair of the Employment Lawyers Association’s Legislative and Policy Committee.
But the wound inflicted by four years’ of fees is raw still. “We will never know how many people have been denied access to justice and to legal recourse. Their stories may remain untold and their rights unprotected,” Dave Prentiss, general secretary of Unison, stated outside the Supreme Court. But we know that behind the steep drop, thousands of women will have been denied the chance to challenge sexual discrimination and many workers would have had to simply put up with not getting their rest breaks or holiday pay.
Laws have little meaning if there is nowhere to seek redress when they are not followed. In this way, Unison’s victory has also hammered home the importance of access to justice to protect workers and their rights, and not just the rights themselves.
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