The Ministry of Justice has announced that they are to conduct their long awaited review into Employment Tribunal fees. Since the implementation of fees the number of cases brought before the Employment Tribunal have halved and there are ongoing concerns regarding the impact that they are having on access to justice.
Considered against a backdrop of swingeing cuts to the Legal Aid budget many legal professionals and commentators have seen the implementation of Employment Tribunal fees as ideologically driven. CIPD research, published in March 2015, confounded expectations and reported that employers were split fairly evenly between opposition and support for the fees regime. There have been indications that considerate employers are concerned that the fees regime may give an advantage to those who adopt a more laissez faire approach to employment regulation.
Having carefully analysed the contents of the review’s terms of reference, and early comment on the same by Michael Reed of the Free Representation Unit, and Richard Dunstan, of the Hard Labour blog, there appears to be cause for scepticism.
The review has been announced, when publication was not entirely necessary, in very close proximity to the Court of Appeal hearing in respect of Unison’s challenge to the implementation of Employment Tribunal fees. While it is generally considered that the Courts can no longer justify delaying a decision on the basis of lack of evidence it is almost certain that representatives of the Government will be pointing to this review in an attempt to avoid an embarrassing adverse decision in respect of the potentially unlawful implementation of the fees regime. There is some risk that the announcement of a review may lead to further delays in this eagerly anticipated case.
There is no indication that opinions will be sought, outside of Government. Many of those involved at the coalface of employment relations will quite rightly consider themselves in a much better position than civil servants to provide comment on a policy that is directly affecting their day to day work. While the views of civil servants, and the published statistics, will give a flavour of the impact of the policy only the collective experience of those involved in employment litigation can give a full picture of the ongoing affect. Any failure to canvass opinion outside of Petty France and Whitehall will create an impression that the Ministry of Justice is shying away from prying too deeply into the actual impact of their policy.
The most concerning offering, in the review document, comes where other factors that will guide the process are set out. Here it is made clear that the review will be carried out with regard to an ‘improving economy’ and a ‘previous downward trend in Employment Tribunal cases’. Adopting a somewhat cynical mindset this seems to indicate that the review is not being approached with a truly open mind. It is particularly difficult to see how an improving economy and a reduction in Employment Tribunal claims can be reconciled; and, if there was a downward trend in Employment Tribunal claims, the question is raised as to whether the fee regime was absolutely necessary in the first place.
It is to be hoped that an open and honest review process will be carried out and that the opinions of those affected by the policy will be sought and borne in mind when conclusions and recommendations are made.
By solicitor, Ryan Bradshaw
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