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In July 2013, the Conservative-led UK Government introduced a fee system for Employment Tribunals. These costs are solely to be paid by employees. The employers do not have to pay to defend the action. This means that in order to lodge a claim employees are now required to pay a lodging fee of up to £250 and then a further £950 for the case to proceed to a hearing before a Judge.

The result has been a drastic drop in claims and severe restriction in access to justice for ordinary working people. Official statistics show a huge 81% drop in claims lodged between April and June 2014, compared to the same time in 2013.

A low paid worker, who has been recently dismissed, is unlikely to have a spare £1200 to enable them to lodge an Employment Tribunal – even if they believe their dismissal to be unfair.

It is also allows rouge employers to “get away” with breaches of the law. Essentially in many of these cases there is no “stick” for them to comply with the law. The law can be breached with impunity, safe in the knowledge that no low paid worker is going to be in a position to afford to bring an Employment Tribunal claim against them, no matter how bad their treatment.,

It is for these reasons that we, at Thompsons Solicitors Scotland, are calling for the immediate scrapping of Employment Tribunal fees. Access to justice should not be based upon the ability to pay.

However, simply removing fees would be an opportunity lost.  It would represent no more than tinkering around the edges of the problem.  It would do nothing to bring the Tribunal’s back to the purpose for which they were created - an informal arena where individuals could represent themselves, trades unions officers and HR representatives could appear for both parties, and the matters would be presided over by an industrial jury with experience in industrial relations.

There are a variety of options as to how this radical new system may look. However the system must be accessible to all, represent an equality of arms and access to justice for all. An Employment and Equality Court has been suggested.

Any such change with this aim inevitably requires a proper and adequate costs regime e.g. qualified one way cost shifting (QOCS). This is necessary to even up the huge imbalance of power that exists in our economy between the employer and the employee.

Acas Early Conciliation needs to be reformed to ensure that there is meaningful engagement during the early stage of the dispute and consequences if it is treated by either party as simply a paper exercise. This may take the form of non-binding arbitration where an arbiter comes to an independent decision relating to the matter in dispute. With the successful party receiving the protection of not being liable for the other sides costs.

Under the Smith Commission the rules and procedures relating to Employment Tribunals are to be devolved to the Scottish Parliament meaning that the possibilities for reform are endless.

We, at Thompsons Solicitors, look forward to an open debate and dialogue to ensure that those employees treated unlawfully and discriminated against at work are able to access justice and that this is not based upon the ability to pay.

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