In January 2024, the government launched a consultation into the proposed introduction of fees to employment tribunals. Here, director of the Employment Legal Advice Network (ELAN) Victoria Speed, outlines the negative impact this would have on low-income workers exercising their employment rights.
There are many definitions of good work[1]. Common to all definitions is the idea that you should be fairly paid. Simply put, if you turn up and do your work you should be paid for it. If you don’t get paid properly, or on time, you should be able to do something about it. Is there a person in the land who disagrees with this?
It's in everyone’s interest that workers are paid properly. Good employers are not out priced by companies treating their staff badly, and workers paid for work delivered can keep a roof over their heads and food on their table.
The importance - and flaws - of employment tribunals
For most people, the employment tribunal presents the only option for seeking justice in employment rights. If you’re unfairly dismissed or discriminated against, you can make a claim, up until now for free. In January, a consultation on a proposed £55 issue fee for claimants was launched[2].
In that consultation, Parliamentary Under Secretary of State, Mike Freer, states that we have “an effective tribunals system that underpins the rule of law, upholds and enforces rights and obligations, and benefits the whole of society”. Many in ELAN would disagree.
If you’re unfairly dismissed or discriminated against, you can make a claim, up until now for free. In January, a consultation on a proposed £55 issue fee for claimants was launched.
For the most vulnerable workers there are significant barriers to using the tribunal including:
- poor knowledge of rights
- poor knowledge of how to enforce those rights, particularly with time limits
- lack of access to advice and support. There is no legal aid available for employment advice and the not-for-profit sector is unable to meet demand
- other barriers, including practical, personal, cultural barriers and fear of the consequences[3].
We also see many cases from those who do navigate the employment tribunal successfully where the employer doesn’t pay the financial award set out in the judgement. The whole framework for ensuring compliance of employment rights needs addressing.
The consultation points out that employment tribunals provide “crucial services to individuals going through difficult and unsettling times in their lives. Whether a dispute arises due to alleged discrimination, unpaid wages or unpaid holiday pay, the employment tribunals offer employers and employees a crucial forum to resolve their disputes through just and certain outcomes.” Only now, they will have to pay for this crucial forum.
The impact of charges on vulnerable workers
We’ve seen before how charges prejudice access to justice for the most vulnerable[4]. ELAN works with migrant workers, pregnant workers, cleaners, hospitality workers, agency staff and more. Evidence from the frontline suggests that the introduction of fees will have a significant and negative impact on these workers and their ability to access justice. Faced with the hurdles listed above, the introduction of fees will present the proverbial nail in the coffin for most.
There may be exceptions, but for many, the process of seeking justice in employment rights is already challenging and they won’t have the skills and resources needed to seek exemption status. £55 might not sound like much to everyone in “good work” but pause a moment and think about what this might represent in households struggling to make ends meet, experiencing in work poverty[5] and without the means to access legal advice and support. The Joseph Rowntree Foundation recently reported that 4.2 million households were going without essentials towards the end of 2023. For many on the lowest incomes there is no room to cut back, no £55 to be found to pay for an employment tribunal that is already challenging to navigate.
ELAN works with migrant workers, pregnant workers, cleaners, hospitality workers, agency staff and more. Evidence from the frontline suggests that the introduction of fees will have a significant and negative impact on these workers and their ability to access justice.
The frontline’s experience of supporting workers seek enforcement of employment tribunal claims provides hard evidence of the likely impact on vulnerable workers. Many claimants report that their employer has not paid their employment tribunal award, but find the thought of another legal process too intimidating and do not want to risk losing more money as payment of the county court fees for enforcing their judgment. Surely this same fear of risk of losing more will be prevalent in the minds of many.
What's next?
To determine the true effectiveness of our employment tribunal system, we need better data. This could be gathered in a number of ways – for example through a text message system asking whether a payment has been made. With proper data, ministers can make informed strategic decisions about facilitating justice in worker rights.
ELAN is preparing a response to the consultation with its members. This will be a publicly available document. You can find the consultation here. It's open for responses until 25 March 2024.
