In the second instalment of Professor Sir Bob Hepple’s ‘Equality Agenda in 2015’ series, the focus turns to the impact of the recent introduction of employment tribunal fees. What might be done to reduce the cost of tribunals to the taxpayer while still ensuring access to justice?
This year is the 800th anniversary of Magna Carta, so it is not inappropriate to recall clause 40 (still on the statute book), which states: “To no one will we sell, to no one will we refuse or delay, right or justice.” The imposition of employment tribunal fees since 29 July 2013 has proved to be a devastating obstacle to access to justice contrary to the spirit of Magna Carta, denying justice to thousands of victims of discrimination who cannot afford the fees and have also been deprived of free legal advice and representation.
Evidence gathered by the Trade Union Congress (TUC), Citizens’ Advice in England and Scotland, the Law Society of Scotlandand researchers at Bristol and Strathclyde universities show that people with genuine claims are being prevented from lodging them because of inability to pay. All types of discrimination claim, for which a fee of £1,200 is now payable by a single claimant, fell by around 80%, and sex discrimination claims by 91%, in the period April to June 2014 in comparison with the previous year. The latest statistics (July to September 2014) show a slight increase in sex discrimination claims but this is still more than 80% below pre-fees level.
Hopes that the courts would strike down the Fees Regulations have now been dashed on two occasions. In February 2014 in R (Unison) v Lord Chancellor (EHRC intervening)  EWHC 218 (Admin), Moses LJ and Irwin J held that the level of fees did not breach EU principles of effectiveness or equivalence, nor was there a breach of the PSED. They concluded that the application was premature because there was insufficient evidence of the disparate impact on individuals of a protected class. A second application relied solely on a breach of the principle of effectiveness and of unjustified indirect discrimination. On 17 December 2014, this was dismissed by Elias LJ and Foskett J (Unison No.2, case CO/4440/2014). The Court indicated it could not evaluate the arguments without reliable evidence as to the impact on particular individuals; and, in any event, the Government’s aims in setting up the fees scheme were legitimate and proportionate.
The Government is currently reviewing its fees policy and it can be expected that if re-elected to office, the Conservative Party will maintain a fee-charging system, possibly with some modifications, for example through an expansion of the fees remission arrangements, if significant disparate impact on particular groups is shown. The Labour Shadow Business Minister, Chuka Umunna MP, told the TUC conference in September 2014 that a Labour Government would reform ETs and put in place a new system that ensures that workers have access to justice.
What reforms are possible that would simultaneously reduce the cost of tribunals to the taxpayer and ensure access to justice? The objective of reducing unmeritorious claims is already met by various rules on striking out, deposits and costs. Paradoxically, s.138 of the Equality Act (based on earlier legislation) was repealed in 2013. This helped to avoid unnecessary litigation by allowing a person who thought there may have been unlawful discrimination to send a questionnaire on a prescribed form to a potential respondent, and thus could avoid litigation where an innocent explanation was given. The deletion by the Deregulation Bill 2014–15 of the power of ETs under s.124 Equality Act to make wider recommendations has also removed an incentive for employers to take remedial action that would prevent future litigation. A Government that is serious about reducing litigation would restore ss.124 and 138.
Greater use of preliminary hearings is another way of reducing lengthy and expensive hearings. There has been a considerable increase in the number of such hearings. No further fees are charged for these. The former President of Employment Tribunals, David Latham, has pointed out that these hearings can resolve many issues (EOR 249). It will be necessary for an incoming Government to evaluate the impact of the new system of early conciliation. In addition, the “arbitration alternative” under the auspices of Acas (introduced in 1998 for unfair dismissal but not utilised) should be re-examined, with a view to adapting it for discrimination cases. The advantages of such an alternative could be speed, informality, an investigative approach and cheapness – all aims of the original tribunal system.
This series is based on Professor Sir Hepple’s article in the Equal Opportunities Review (Issue 255, Feb. 2015) and presentation at the TUC/EOR Discrimination Law 2015 conference on 23 January 2015.