How much should access to justice cost you?

At least ‘something’, according to Jonathan Djanogly MP. Speaking during the second reading of Prisons and Courts Bill earlier this week, Mr Djanogly MP, when discussing Employment Tribunal fees, commented:

‘…is it not the case that if someone can get something for nothing, they are likely to take it up? That was the core problem with employment tribunals when people had to pay nothing to get access’.

Employment Tribunal fees were introduced by the coalition government on 29 July 2013. Claimants must pay an ‘issue’ fee when initially presenting their claim and a further fee prior to the case being heard by a Tribunal (the ‘hearing’ fee). This means that individuals could potentially have to pay up to £1,200 to bring a claim and pursue it all the way to a hearing.

Mr Djanogly’s comments above demonstrate a fundamental lack of understanding of how access to justice should work. Rather than discussing the significant barriers ordinary people face when enforcing their rights, Mr Djanogly’s remarks further entrench them, treating the payment of tribunal fees as part of a deal or trade off, requiring claimants to speculate to accumulate. This characterisation, as Richard Burgon MP pointed out later in the debate, treats individuals seeking to enforce their rights ‘primarily as consumers’, failing to recognise that legal rights are rendered redundant if individuals cannot afford to enforce them.

A number of barriers to accessing justice are already in place, in addition to the payment of fees. Employees might not be aware of the employment rights they have, or be concerned of victimisation if they do bring a claim. The imposition of fees acts as an additional hurdle in an already hurdle-laden system, putting lower-paid workers in an even more vulnerable position.

The tribunal fee system is disproportionate. A claim for £100 unpaid wages, for instance, would cost £160 to issue, and therefore potentially lets employers completely off the hook for not meeting legal obligations. Mr Djanogly’s comments support this, treating employment claims like some sort of litigation-type casino, where employees have to consider whether their bet is going to pay off or not. All the cards are stacked with employers in any event, and do not need additional assistance in preventing employees’ from bringing claims.

Mr Djanogly’s ‘something’ is too contextually narrow, as it seemingly encompasses only compensation an individual could be awarded by bringing a claim. He fails to consider the myriad motivations an individual might have when bringing a claim. After suffering discrimination at the hands of their employer, for instance, an individual’s primary objective could be stopping their employer of discriminating against future employees. Does this non-pecuniary type of outcome fall into Mr Djanogly’s ‘something’?

A long overdue government consultation to review the introduction of tribunal fees was published in January 2017 by the Ministry of Justice. It claims the Government’s original objectives - transferring costs of the ET to its users, encouraging people to use alternative services to resolve disputes, and to protect access to justice - have been ‘broadly met,’ and that while it was clear that many people had chosen not to bring claims to the Employment Tribunal, ‘there is nothing to suggest they have been prevented from doing so’.

Despite the government’s positive tone, the number of individuals bringing claims has fallen by approximately 70% since the fees introduction. The report recognises this drop in claims, commenting that ‘fees, alongside the introduction of the early conciliation service, have brought about a dramatic change in the way that people now seek to resolve workplace disputes’.

A curious position of both the report, and to some extent Mr Djanogly’s comments, is the implication that claims not pursued must therefore automatically be unmeritorious, with the fee regime successfully weeding out individuals with frivolous claims - that, essentially, only those with a good claim will pay the fee to pursue it. There is no evidence to support this position. The only conclusion to be drawn is less dramatic: that some people pay the fee and others do not.

As Richard Burgon MP stated during the debate, just because an employment dispute has been resolved through ACAS does not mean that it has done so satisfactorily, with both parties on an equal footing. Not being able to afford to pursue a claim can arguably undermine the claimant’s position in any conciliation, with the employer’s hand always strengthened by the employee potentially not affording to pursue the matter further. This arguably gives employers carte blanche to mistreat workers free from consequences.

The report acknowledges that despite the supposed success of the regime, ‘this does not mean that there is no room for improvement’. It recommends that the gross monthly income threshold for full remission should be raised from £1,085 to £1,250 for a single person, and that ET proceedings relating to payments for the National Insurance Fund should be exempt from fees.

Given the issues surrounding the tribunal fees above, neither action will make sufficient inroads in removing barriers to access to justice, and at least for time being Mr Djanogly’s comments are very much crystallised in the tribunal fee system in its current form.

Trade union, Unison’s judicial review challenge to abolish of the fee regimes will be heard by the Supreme Court in March 2017.