Dismissing Tribunal Fees: Tackling Hidden Discrimination

Dismissing Tribunal Fees: Tackling Hidden Discrimination

This month will mark the fourth year for one of the most significant changes to have occurred in UK tribunal history – employment tribunal fees. Their introduction was highly controversial and had been contested since they were announced in July 2013 by Unison. Yesterday, 26th July 2017, they were scrapped by the Supreme Court which ruled that the government had acted unlawfully and unconstitutionally by introducing them. Though very few will have noticed the fees presence at all during their four years, they did have a huge and adverse impact on employment tribunal history.

Over the four years that the fees existed, there was nearly an 80% drop in case numbers. In this respect, the fees had been very successful in achieving their aim. Forced in with little wider consultation, tribunal fees had a two level system. For level one cases, claimants needed to pay both an issue fee (£160) and the hearing fee (£950), level two fees were £250 and £950 respectively. The fees were intended to “contribute to [tribunal] running costs” and encourage potential claimants to explore alternative solutions such as mediation. But, the underlying hope was that they would deter speculative claims.

The effects were immediate. Within a month not only had the number of claims accepted by the employment Tribunal Services decreased by 55%, but the new measures disproportionately affected the most disenfranchised employee groups. Women were some of the biggest losers from the fees’ introduction. Research published at the time by Maternity Action found that 60% of women had suffered from discrimination due to pregnancy or maternity leave. Tired, insecure and with increased financial responsibility, the poorest women were the least likely to afford to fight a case. Even if it was for genuine discrimination. It was a double let-down by both their employer and the legal system.

This landmark hearing will ensure that those who had brought a case since the fees’ introduction (July 2013) will have their fees refunded. Of course, those who did make it to a tribunal during that period would have been the more privileged anyway: either with the financial means or social (e.g. child care or family) support to manage the fees and harrowing tribunal experience. As the hearing result is still very fresh, it is too early to ascertain what it likely to follow. However, it’ll be a perverse error if the government was to once again indirectly punish those who, with genuine claims, were not able to afford legal justice during those four years. They were previously priced out of representation; let’s now hope we don’t side-step their already silent voices.

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