Celebrated by many as a victory for working people over the elite, a Supreme Court battle brought by public sector union Unison against the government led to the scrapping of tribunal fees in late July.
Unison argued in the case heard on 27 and 28 March 2017 that the fees, which were introduced in 2013, had prevented workers accessing justice. The Supreme Court ruled that the government was acting unlawfully and unconstitutionally when it introduced the fees and the government said it would take immediate steps to stop charging and refund circa-£30m worth of payments.
Supreme Court judges were said to have ridiculed the government’s “misunderstanding of elementary economics and plain common sense” when saying higher fees would mean increased demand and said the fees were set so high that they had had a deterrent effect upon genuine claims of discrimination, especially from women.
Unison celebrated the ruling, with its general secretary Dave Prentis stressing the moral obligation to act and calling it “the most significant judicial intervention in the history of British employment and constitutional law”.
Unite’s assistant general secretary Tony Burke concurs with Prentis and heralded it as a “massive victory for the trade union movement”.
“I’m old enough to remember when tribunals were first brought in, as part of a settlement and understanding on fairness at work,” says Burke, reflecting on the victory.
“Ordinary people go to work everyday and people get treated badly at work, and when it does happen you should have the opportunity to put your case forward.”
The government introduced the fees of up to £1,200 to reduce the number of malicious and weak claims and within 18 months 82% of employees were being deterred from going to a tribunal due to cost, according to figures from the Citizens Advice Bureau, although the former head of BPIF Legal Anne Copley recently reported that there had been an increase in tribunal activity of around 15% over the past year.
Speaking to PrintWeek just before she retired in May, Copley said that the big drop-off instituted by the introduction of the fees had been mitigated as people had got used to the new regime. The argument from Copley was that fees were necessary to safeguard disgruntled employees from wasting an employer’s time with false claims.
Ian Cass joined the Forum of Private Business (FPB) as chief executive after the fees’ introduction but agrees with the broad argument that employers need some sort of protection. Rewind back to 2013 and the FPB welcomed the introduction of the fees, seeing them as a way to “stem the flow of vexatious claims” and even questioning whether they went far enough.
“I’m all for protecting employer’s rights but tribunals were being used in a default casual way [before the fees]” says Cass, who during his time in management at drinks company Diageo was challenged by seven dismissed employees, of which four did not even turn up to their hearing.
“I wouldn’t say it was unfair of Unison to challenge this but we’re back to square one again. Maybe it had gone too far, maybe it favoured employers over employees, but there’s surely a way of balancing this.”
Pros and cons
Print bosses reacted with similar nuance to the ruling, accepting both sides of the argument and not taking either as gospel.
Webmart chief executive Simon Biltcliffe celebrates the victory against a “truly anti-democratic levy law” but concedes that the system still requires improvement.
“When any law discriminates in such a way that nobody can afford it unless their income is over £50,000, it renders the law impotent,” he says, railing against the “iniquitous anti-working class Tories” that pushed through the fees.
“Somewhere between the government and the judiciary there needs to be a balance to get this right. Nobody likes to see people treated unfairly by unscrupulous employers, equally you don’t like people having spurious claims based on flimsy non-evidence where you have had to settle because it’s the most cost effective and pragmatic solution.”
Pinstripe Print’s Nigel Lyon, while not disavowing the Supreme Court’s decision, agrees with Cass’ claim that too many cases were being brought – and eventually thrown out – and were wasting employers’ time, and believes there should be some form of pre-assessment to judge whether a case can be seen.
“If you’ve got somebody who basically has nothing, a single mum or dad, and they’re only just about managing to make ends meet, you have to look and think how they can afford it,” he says.
“I don’t think it would necessarily be unreasonable to have a pre-assessment to say ‘Well actually this is a valid position and we ought to consider this because it is fair’.”
Linney Group chief executive Miles Linney has faced just two or three claims since he took charge of the marketing services group and, while neutral on the impact the removal of the fees will have, he believes the government’s focus should turn to the “ambulance chasing” mentality of lawyers seeking to represent dismissed employees.
For the time being the jury is out on the best direction for tribunals to take but, on avoiding facing spurious claims in the first instance, Biltcliffe has some final choice words for employers that land themselves consistently in hot water.
“You have to be pretty insensitive or fundamentally wrong if you have a constant stream of these things coming through as a percentage of your workforce, and you need to take a good hard look at the way you approach employees and people generally if this is the case,” he con-cludes.