On Tuesday (9 September), the Labour Party announced that it would revise the current employment tribunal fees system if elected. Shadow Business Secretary Chuka Umunna said a Labour government would look at a “more streamlined and less bureaucratic procedure” – but stopped short of suggesting they would revoke fees altogether. It’s an interesting stance in the context of the current debate around the impact of tribunal fees on employee relations.
The introduction of tribunal fees, which came into effect on 29th July 2013, was certainly a shot across the bows for all those involved and/or interested in the concept of employment equity within the UK. The Ministry of Justice, and more recently, trade unions, reported that claims had decreased by some 80%. The fees range from £160 to £250 to lodge a claim, and between £230 and £950 for the hearing itself, depending on the type of claim raised. The question is, what have been the consequences of fees on employment relationships and what have been the implications for professionals responsible for maintaining workplace relationships?
From my perspective as a former HR practitioner, current serving member of the Employment Tribunal and an academic involved in the professional education of would-be HR practitioners, it’s a key issue. The Labour Party states that in power they wouuld “ensure that affordability will not be a barrier [to employment rights]”. There is no doubt that the current system is unwieldy and archaic in its operation. We need to be ensuring that, in an age of suspicion regarding information management and corporate social responsibility, there is transparency regarding business practices both within and outside of organisations.
For employers, the initial thinking was that episodes of litigation would decrease and the power base of the employer would rapidly expand. This seems logical against the backdrop of a still shaky economy and following the introduction of the two-year service requirement for unfair dismissal in 2012. The reality of the latter has been that the employee’s ability to pay has had more of a significant impact than the merits of their case. The introduction of fees may have gone some way to stem the frivolous or vexatious claims, but it has not had much impact on promoting good employee relations and creating motivating work environments. A good example of this is the reported cases at EE and the Metropolitan Police where the employer’s practice has been questioned.
For the claimant, gaining legal representation within this context – either from their union or through private means – continues to be a challenging task, as both would need to be entirely convinced that the case is worth fighting for and has a substantial chance of winning. If the claimant wishes to ‘go it alone’, the thought of taking on a corporate giant can be terrifying. The past year has seen claimants shy away from tribunal claims for this very reason. For tribunal members, the decline of cases, alongside the increase of powers for employment judges to ‘sit alone’ on cases, has meant that full tribunal hearings including members have vastly diminished. It therefore must be questionable as to how far a ‘real life’ knowledge of the business environment is considered when judges make their decision, especially given that some may have little or dated experience of corporate life.
The current coalition government have mooted their consideration of a review of the fee system. Umunna states that the current system is “unfair, unsustainable and has resulted in prohibitive costs locking people out of the justice that they are entitled to”. My view is that we need to balance access to justice against unmerited claims – and that the true key to progress lies in the promotion of the achievement of early conciliation.
When I first joined the tribunal service in 1999, the encouragement of the concept of the successful employee being reinstated or re-engaged with their employer was central to our process. Employers were encouraged to ‘make amends’ and offer employment as a resolution to the situation. In later years this became almost obsolete as a potential outcome, as either relationships had broken down too much, and/or the pursuit of financial compensation became the primary objective. In light of this new political debate, however, maybe now is the time for employers, employees, trade unions and tribunals to get back to some of these concepts and focus on rebuilding relationships rather than compensating for their failure.
Marcia Hazzard is Head of Department (HR and Organisational Behaviour) at GSM London