Society of Labour Lawyers’ Employment Group met on the top floor of Congress House on 30 May 2018 to hear from guest speaker SHANTHA DAVID of UNISON, leader of their triumphant 2017 case (transcript here).
Labour had a manifesto pledge to abolish tribunal fees in May 2017. Only 2 months later the Supreme Court struck them down as unlawful.
Shantha questioned how we got to a position where Supreme Court had to lecture government on the rule of law. To explain, she set out a history of employment tribunals (beginning with the Donovan report) and emphasised their importance as generally the only forum in which an employee can vindicate their rights. Some cases may not attract an award (for example a failure to provide terms and conditions of employment) and compensation in most cases is surprisingly modest. The background was bleak enough before fees: tribunal claims were falling, and shockingly only 35% of successful claimants were being paid compensation awarded to them!
The Tory government’s consultation in 2013 received overwhelming reception that the introduction of fees would be inherently unfair. UNISON’s formal challenge began with a letter in April 2013, which was ignored: the fees came into force on 29 July 2013. UNISON were in Court that day. The High Court gave them permission to proceed and after the hearing, Grayling gave an undertaking he would reimburse any fees if successful (how the Ministry of Justice must regret that now!).
The ‘logic’ for the change, as explained by Chris Grayling, was to shift the costs to users: to combat a “technical ‘deadweight’ loss”. For Shantha, this assisted her challenge, as she could use statistics to prove that this was completely incorrect. To to find evidence, she used FOI requests and tried to persuade the government to publish statistics. There was an 81% drop in claims following the fees. It was also clear low paid and female claimants were particularly adversely affected (of interest to UNISON, who have an approx. 80% female membership). The remission scheme intended to help 53% of claimants in fact only helped 18%.
The road was a long one: the first JR on sex discrimination was rebuffed by LJ Moses as premature, as they could only rely on interim statistics. By the time of the second JR, UNISON could rely on statistics showing the extraordinary fall in claims, which labelled as ‘striking’. The Court of Appeal found that fall must not only mean many claimants refused to pay, but also some who “can’t pay”. LJ Underhill requested an example of one affected person, but UNISON decided to hold their line. In hindsight this did well to avoid a Gina Miller-style press inquisition, and it also highlights the role of Trade Unions: tackling systemic problems where single claimants might be induced to settle.
4 years on from the beginning of their challenge, the Supreme Court heard form UNISON that the fees were denying a remedy to the wronged, and particularly affecting women. In eventually condemning the then Lord Chancellor’s approach came Lord Reed’s famous words: “the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings.” The Court invoked magna carta (only in the supreme court!) and found a breach of the constitutional right to access to justice.
Going forward, the MoJ are administering refunds of up to 32million (although this only covered 9% of the cost of running the system). They have now undertaken to contact every person affected. Claims postponed or avoided due to fees ought to be reinstated and in Shantha’s experience Judges have been very accommodating so far. Since fees, claims have gone up by 90%. In practical terms it is near impossible to get a hearing date, and access to justice is (ironically) extremely slow.
The House of Lords have been debating shocking delays in the system. Clearly simply getting rid of fees was not enough. The government are now recruiting 54 judges but it will take time to train them. What will be done about closed Court buildings? Even those buildings there are are unfit for purpose: with barely 1 plug-socket per room! How can Labour attempt to speed up the process while retaining focus on justice? Early conciliation is currently treated (by employers) as little more than a procedural step. Could we put forward an early arbitration, or interim award scheme to be decided on the papers? For Shantha, this would not do, as oral evidence is crucial in complex cases such as unfair dismissal, and an assessment of oral evidence is vital in discrimination claims.
In questions, Shantha was sure that the judgment will retain its potency post-Brexit because it is couched in common-law terms. And for the field of employment law as a whole, If Judges continue to owe a duty to interpret in line with ECJ jurisprudence, the ECJ will in reality remain supreme. Shantha particularly expressed concerns that the government may be targeting a repeal of the TUPE Regulations, as information consultation rights are seen as onerous and might be the easiest to get rid of.
Group chair Tom Jones highlighted the wider applicability of such quotes as: “Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade”. The case has already been quoted in the Bach review: could it be used to challenge the legal aid cuts; or even changes to the small claims limit?
The Employment Group are keen to engage in future meetings and particularly find employment lawyers who would like to share their experience and discuss future Labour policy. If you have any ideas or questions, please email Tom Jones at tom.jones@societyoflabourlawyers.org.uk.