Sunehri zulfon, nasheeli ankhon ki desh ko khokar;
Main hairaan hoon woh zikr waadi-e-kashmir ke karte hain. (After losing Bangladesh, I am troubled to learn they still go on about the Kashmir valley.) - Habib Jalib
Sunday, 17 August 2014
Priced out of court: why workers can't fight employment tribunals
Last year, the government introduced fees of up to £1,200 to end frivolous claims. But are people with legitimate complaints now unable to get justice? We listened in to cases to find out
Many potentially successful claimants are being put off by fees. Photograph: Getty Images/Image Source
In Court 9 at the East London employment tribunal, a judge begins hearing a case to determine whether a senior member of teaching staff at Epping Forest College was the victim of age discrimination when she was made redundant last year. She was 61 when she lost her job.
"She will say that her job was rebranded and given to a 27-year-old," her lawyer tells the court. Everyone in the team she led was also made redundant; all of them were over 50, he says. "She was dismissed, as was her team, in order to make way for younger and cheaper people." He tells the judge that a third of the 31 redundancies made by the college were people over 60. A lawyer for the college gets up to argue that age had nothing to do with the decision. "Restructuring was carried out in the interest of economy and efficiency."
In another court, a judge deliberates on whether a pharmacist was unfairly sacked shortly after she told her employers that she was pregnant. In Court 5 lawyers are discussing whether disability discrimination was a factor in a large multinational firm's decision to sack a senior staff member who had been unwell. In Court 3, lawyers for an administrator at Barts Health NHS Trust are considering whether she was unfairly dismissed, the victim of bullying, or whether she was rightly disciplined for gross misconduct.
The tribunal offices are packed with anxious claimants in one waiting room and their irritated ex-employers gathered a safe distance away in another. There are eight judges deliberating cases in stark white hearing rooms around a maze-like corridor, but research suggests that this employment court may soon be much less busy. Fewer and fewer people are taking their employers to tribunal, in the wake of a government decision last year to introduce fees of up to £1,200 for claimants to pay for tribunal hearings. A recent TUC report shows that there has been a 79% fall in overall claims taken to employment tribunals, with women and low-paid workers the worst affected.
Their analysis of government figures shows there has been an 80% fall in the number of women pursuing sex discrimination claims since fees were introduced, with just 1,222 women taking out claims between January and March 2014 compared with 6,017 over the same period in 2013. The number of women taking pregnancy-discrimination claims fell by 26%. Race discrimination cases have dropped by 60% over that period, while disability claims have fallen by 46%. There has been a 70% drop in workers pursuing claims for non-payment of the national minimum wage and an 85% drop in claims for unpaid wages and holiday pay.
Similar trends have been highlighted by Citizens Advice, which reported that seven in 10 potentially successful cases are now not being pursued by employees, with over half of those interviewed saying the fees or the costs were deterring them. Chief executive Gillian Guy has called on the government to review its policy on tribunal fees. "Employers are getting away with unlawful sackings and withholding wages. People with strong employment claims are immediately defeated by high costs and fees,"she said. "The risk of not being paid, even if successful, means for many the employment tribunal is just not an option. The cost of a case can sometimes be more than the award achieved and people can't afford to fight on principle any more."
Some of the claimants pursuing cases today launched their actions before the fees were introduced and would not have gone ahead if they had been obliged to find £1,200 in fees.
Demetrious Panton, an employment lawyer with Artesian Law, representing the NHS administrator who believes she was wrongfully dismissed, said his client would not have been able to afford to take the case if she had had to pay such a fee. "Her wages would have been around £1,500 a month. If she was going to be charged £1,200, I don't think she would have put the claim in. We are seeing more and more people nervous about putting their claims in because of the fees. We are seeing a fall in the number of claimants coming forward," he said.
"The idea was that the fees would put off vexatious claims – I've never come across those anyway," he said.
He spends the afternoon cross-examining a senior NHS manager. "It was clear that there had been a breakdown between the claimant and the rest of the team. It was clear that she was unhappy about the way other staff members were sending her to Coventry. We know that the claimant was going through considerable stress in her personal life," he tells the judge, attempting to give background information that might explain why his client had sworn at her colleagues, one of a numbers of incidents that led to her being disciplined and later being dismissed for gross misconduct. In any case, the claimant disputes whether she swore in the way her employers have alleged.
The government has promised to review the impact of the introduction of fees, although no date for the review to go ahead has yet been announced. A Ministry of Justice spokesperson said: "It is not fair for the taxpayer to foot the entire £74m bill for people to escalate workplace disputes to a tribunal, and it is not unreasonable to expect people who can afford to do so to make a contribution. For those who cannot afford to pay, full fee waivers are available."
But the Bristol and Strathclyde university researchers say the system is complex and claimants have found it hard to establish whether they are eligible.
Anthony Martin, 56, had to abandon his plan to take his employers to court after he was sacked, he believes unfairly, from the company that employed him as a driver in Glasgow last April, because he felt unable to risk the costs. He was accused of denting two vehicles, and not admitting the damage, but he argues that the vehicles were dented by other employees and he did not report the damage because he saw no need to, since he assumed it was historic. He consulted advisers at Citizens Advice in Glasgow, who tried to help him determine whether he was eligible for the fees to be waived, but because it proved difficult to get the correct forms together, he missed the application deadline, and was faced with the choice of either finding the fees or abandoning the case.
"I wanted my job back; it was a good job. But I also wanted to prove them wrong because they were accusing me of something I didn't do. I knew I didn't do it. I was absolutely raging about it. I wasn't in it for the money – it was that they got away with sacking me for something that I didn't do."
He had got into debt anyway in the weeks following his dismissal, so paying the fees was simply unthinkable. "It's not fair to make the employee pay. On the wages I was getting, about £300 a week, the fees would have been a month's wages. It's not affordable. There was no way that we could have done it."
Emma Satyamurti, an employment solicitor with Leigh Day, said she had seen a number of claimants "under-settling" their cases before their cases, because they were unable to find the fees.
"For many types of employment claim the remedy being sought by the claimant will not be large sums of money. For such clients, the fees are particularly prohibitive since they are disproportionate to the potential benefits to be gained by bringing the claim. The fee remission system (whereby claimants with low enough 'household' capital and income can get all or part of any fee waived) does not in our experience adequately remove the deterrent effect of fees, as only a small minority of potential claimants are eligible, and the remission system itself is difficult to navigate if people are trying to deal with it themselves," she said.
As part of the reform to the system, employees and employees must take part in a free "early conciliation" process, overseen by the independent conciliation service Acas to see if legal proceedings can be averted. But some employment lawyers argue that the introduction of fees reduces the incentive for employers to agree to early settlements. "They may wait to see if the claimants put their money where their mouth is, and actually pay the fees to take forward legal proceedings or not. The employer doesn't have as much incentive to engage in settlement at that point. They may well feel, if we hold on long enough the claimant may have to give up and go away," Satyamurti said.
The sharp fall in the number of women taking cases has caused particular concern. Rosalind Bragg, director of Maternity Action, a charity that supports pregnant women, said: "We regularly hear from callers to our advice line that the cost of pursuing an employment tribunal claim is out of their budget.
"Research from 2005 found that only 3% of women who lose their job as a result of pregnancy discrimination took their case to tribunal. The introduction of employment tribunal fees has massively reduced this already very small proportion of women who pursue a claim."
Rebecca Raven, 34, is one of the few people who has successfully taken action, after she was dismissed from her position as an art teacher, days after telling the head that she was pregnant. She was awarded £33,923.27 in compensation, but has never received the money from the private school, Howell's in North Wales, where she had worked for three years. The school has gone into liquidation.
She was told by the school's trustees that she was being "selfish" to ask for maternity leave, since this would mean that funding for other parts of the school would have to be cut back.
She doesn't believe that people willingly pursue "vexatious claims". "No one wants to go through a process like that. It is the most awful process; there is a horrendous amount of paperwork, and somehow you are made to feel that you are the one at fault," she says.
She would not have been able to pursue the case if she had needed to pay £1,200 in court fees. "Financially, everything we had to rely on had gone when I lost my job. We were struggling to buy food every week." Her family helped her to get through that period, but she says there is no way she could have asked them to pay the fees.
"When you're pregnant, you need to start putting money aside for the baby. I wouldn't even have contemplated spending £1,200 on a court case."
If claimants win under the new system, the tribunal will ask the employer to pay the fees as part of the compensation, but as Raven has experienced, it isn't always easy to get the money, even when it has been awarded.
She is angry about the introduction of fees because she believes it will mean that employers will get away with wrongfully dismissing staff.
"I think that the introduction of fees means that the very few people who were ever going to take their employer to tribunal will no longer be able to, and the figures were very low anyway. It has priced them out of justice. There is no way that most pregnant women can afford to take their employer to court – it's the most expensive part of their life. An awful lot of employers are going to get away with it over and over again because no one is able to bring them to justice.
"If I hadn't gone ahead with my case, they wouldn't have learned any lessons, and they would have done it again, and instead of just making my life a misery they would have done it to other people."