Seven of Britain’s most senior judges have ruled that the Tories’ system of employment tribunal (ET) fees “effectively prevents access to justice”, is “unlawful” and “must be quashed”.
In a Supreme Court judgement issued today, Wednesday, they also argued that the system was “from the outset, destined to infringe constitutional rights”.
The ruling is a major legal victory for workers seeking some legal redress for claims such as unfair dismissal, equal pay or discrimination at work. Introduced in 2013, fees of up to £1,200 for workers to have their case heard were designed by the Tories to allow bosses to abuse workers without the prospect of legal redress.
Even though ETs often do not rule in favour of workers, the Tories sought to frustrate justice even more.
It has taken four years for this case to be won after it was rejected in several lower courts.
This should be a spur to win over cuts to legal aid - and to beat the wider anti-union laws.
The Unison union argued that ET fees discriminated against women and other groups of workers, a view supported by the judges. The union’s general secretary Dave Prentis said the ruling was “the most significant judicial intervention in the history of British employment law”.
Unison said the government will now have to cough up more than £27 million to the thousands of workers charged for taking claims to tribunals.
The Supreme Court judgement revealed the severe impact fees have had.
In 2015 the Acas conciliation service published “figures relating to claimants who were unable to resolve employment disputes through conciliation but who did not go on to issue ET proceedings.
“The most frequently mentioned reason for not submitting an ET claim was that the fees were off-putting. More than two thirds of the claimants who gave that reason said that they could not afford the fees.”
The Ministry of Justice’s (MoJ) own report in January 2017 concluded that “a sharp, substantial and sustained fall” in ET cases had occurred “as a result of the introduction of fees”.
The judges said this fall warranted the conclusion that “a significant number of people who would otherwise have brought claims have found the fees to be unaffordable”.
The MoJ’s conclusion, partly based on the Acas research, was that in 2014-2015 alone those who found fees “off-putting” amounted to “around 8,000” workers.
The number of people who contacted Acas and who did not proceed to make an ET claim rocketed from 22 percent before fees were introduced to 80 percent by the second year of the fees system.
The MoJ claimed that this showed conciliation helped more people to avoid the need to go to ETs but statistics show that the proportion of cases settled at Acas decreased after fees were introduced.
The state’s defence revealed the contempt working class people are held in. The government argued that people could afford the fees if they gave up items such as alcohol, new clothes and social events.
But the Supreme Court said that the “fundamental problem” was that accessing a tribunal was only “by sacrificing the ordinary and reasonable expenditure required to maintain what would generally be regarded as an acceptable standard of living”.
The court said, “It is the practical compulsion which many potential claimants are under, which makes the fall in the number of claims indicative of something more than a change in consumer behaviour.”
It added, “The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded.”
This is a welcome victory, but we can’t rely on ETs or the courts.
The fundamental way workers will win is through organisation, campaigns, protests and strikes.