What next for Employment Tribunals?

The Supreme Courts’ decision in Unison v Secretary of State for Justice, to rule Employment Tribunal fees illegal prompted immediate celebration and rare expressions of unity across trade unions and campaigners for access to justice; whilst also prompting an even rarer example of contrition from our Government – Lord Chancellor and Secretary of State, David Liddington (the 4th during Unison’s challenge) announcing that fees would cease immediately and that arrangements would be made to repay fees now declared “ultra-vires”. So as the hangovers settle big questions emerge as to what happens now.

The most immediate discussion has focussed upon the timing, methods, and scope of reparations. You’d think this would be quick, easy and reasonably straight forward but that would be ignoring one vital fact – the repayments need to be organised through the Ministry of Justice, i.e. arguably the most dysfunctional department in our modern political history. The litany of self-inflicted damage since 2010, outside of ET fees, is remarkable –

• · a prison crisis arising from radical job cuts and ideological restructuring especially from 2010-13;

• · a probation service in crisis following a bungled part-privatisation and part-nationalisation, currently prompting:

• additional contract adjustment payments of almost £300M;

• the nationalised bit being reported to the Pension Ombudsman for failures to administer payroll and pensions via their catastrophic “shared service centre” that could also run into £Millions;

• and a recruitment crisis linked to failures to reform a probation pay system where it takes 27 years to reach a devalued rate for the job;

• · Courts at breaking point after a closure programme, with confidential meetings taking place in corridors and toilets due to overcrowding;

• · and judges bemoaning the rise of litigants-in-person after legal aid cuts, cases taking longer and the risks to the perceived fairness of a ‘day I court’ – justice needing to feel fair to be deemed fair.

The ‘Lord Chancellor’ has been in the dock, and lost, more often since 2012 than most hardened lags. The MoJ’s accounts for 2016-17 were “qualified” (and will now need to be re-opened again after the probation pension fiasco, with staff not having accurate P60’s or Pension statements) and more litigation’s likely. That’s before we get to Panorama and abuse of vulnerable people in detention centres or any number of critical NAO reports, e.g. into tagging contracts.

The MoJ is in ‘siege-mode’ already so before anyone at HM Treasury lends the MoJ the cheque book to repay ET fees they’ll want to be sure the MoJ know what they’re doing. Don’t be surprised if it turns out the MoJ doesn’t have a list of who they took fees from. This will likely prompt calls for victims to prove they paid the fees via bureaucratic process, probably with a tight timescale, once the cheque book is released. It is unlikely that interest will be afforded or compensation for consequential losses paid – at least not without further litigation, with victims potentially citing Woolwich v IRC for “unjust enrichment”. Indeed, given the MoJ’s track record it would not be surprising, however shocking and embarrassing, for people to have to go to Court to get back the fees the Supreme Court has ruled they were illegally charged to try and take their original grievance to court…we live in post-rational times.

Then there are those who argue they were prevented and/or put-off from making an ET claim because of the fees. In the first year of the fees, sex discrimination claims fell by more than 2/3rds and pregnancy related discrimination claims fell by more than 1/3rd.Liddington’s leading junior, Dominic Rabb, has told Parliament that people in this position, “…can submit to the employment tribunal to have their case heard outside the usual time limits. The judiciary will consider those applications case by case.” 1..

This sounds encouraging but case by case assessments will likely include other factors. Napo’s initial advice says that there could be valid grounds for bringing claims now, but that people shouldn’t delay, seeking to bring their claims now – as fees will likely be seen as just one factor in meeting a reasonable, just and equitable test, especially after significant time has passed since the incidents. Potential claimants will also have to likely prove why they couldn’t afford the fees and that this was the primary reason they didn’t bring a claim at the time, which could potentially include there being no point in some cases where fees outweighed the likely reward, e.g. in cases to establish terms and conditions of employment which saw a 100% reduction after the introduction of fees!

Can we avoid ET’s drowning and new problems with access to justice?

If there is less certainty than one may expect about how, when and what compensation victims will receive there’s just as much uncertainty about the broader impact on ET’s of the Unison judgement. On this, there seems to be less consensus amongst legal experts, professionals or unions. The picture’s likely to emerge over time and will be shaped by how some of the current uncertainties present in reality.

The first pressure point centres on what happens if there is a rapid spike in the number of cases. ET’s have had their resources and capacity cut in line with new level of claims. If the removal of fees prompts a rapid rise back towards anything approaching pre-fee application levels then ET’s simply will not be able to cope – a new access to justice problem (and potential legal challenges) would emerge from people having to wait unreasonable and detrimental periods for their cases to be presented.

The chances of exactly this happening have to be high. As well as ETs resources being further stretched as they’re almost inevitably drawn into the fees repayment process, there is bound to be a rush of claims from people who didn’t register claims due to the fees – indeed there is a demand that such claims are submitted quickly.

An additional under-estimated and understated pressure on the system comes from the decline in cases disproportionately impacting on people not represented by unions. Although Unison brought the challenge they largely did so on principle and for people who were not (currently at least) union members - the exercise being even subliminally a marketing pitch to the 70%+ of workers not currently in union membership. Unions met members’ fees after the usual assessment of the merits of the potential claim and whilst there was in some areas a marginal impact on claims coming from unions, none will have not submitted a claim that they would have otherwise backed just because of the fees.

This is important now because claims submitted by unions will be better structured and better advised with almost certainly more scope to open-up to early settlement and mediation. Unsupported claims will be like litigants-in-person in the Family Courts – more difficult to manage and deal with and harder to settle, requiring more direct effort from the already over-stretched ET’s.

There was also, even in union supported cases, another very marked shift when fees were introduced. Although there was a new requirement to seek non-binding mediation via ACAS prior to submitting a claim, many employers used fees as a screen, refusing to engage until an ET1 had been submitted. This made opening up mediation after this point more difficult, with claimants thinking it had already been rejected, especially but not only if they were not represented by a union. The protective claim died and, not least in employers like the civil service (including the MoJ) the capacity to ‘reach a deal’ without threatening or going to an ET ceased. If 70% of possible claimants were being put off by fees the most hardened right-wing employer may say that wasn’t a problem, but if such options are not quickly reopened then the impact on ET listings will be marked.

Managing mediation

The signs are that Government, as far as they have any strategy at all on this, are going to rely upon mediation to moderate and control the additional flow of cases to the ET. This will mirror the emphasis already being placed in Family Courts. All sides will probably welcome this emphasis in principle but making it work will require realism, patience and significant investment.

Arguably mediation is another area where the UK has a huge skills gap – including within unions. Advocates on both sides will need to sell mediation – with a majority of workers relying upon ACAS if they’re not in a union, a role ACAS are not necessarily suited to as the independent middle man, let alone not resourced for. Advocates and /or ACAS and potentially a strengthened new advisory wing of the ET service will also need to be able to assess which cases are genuine contenders for mediation (and if and when that changes).

I fear that the Government may seek to force mediation – possibly strengthening the capacity of the Courts to penalise those who do not put any effort into mediation or early conciliation. Their logic would be similar to their logic around fees – protecting taxpayer interest and wider access to justice. This logic would, I think, be deeply flawed, as you can’t force mediation…trying to is damaging to those involved, representing a lack of understanding of what mediation is, and trying is also very unlikely to work – what happens if neither party can reasonably be expected to mediate when the employment relationship has broken down? You can’t punish both parties and still fairly administer a just and otherwise consistent judgement; and even trying to make such judgements is a minefield that would almost certainly add cost and complication to administering the system all in the name of saving money. However, that such a move wouldn’t work will not necessarily be a deterrent to policy makers.

Wherever mediation sits in a post-fees structure it would be wise and sensible for unions, employer groups and other interested parties (such as the CIPD and ACAS) to grasp the initiative and both quickly re-enforce the existing capacity to meet any increased demand for mediation; and look to work together to seek the support, resource and space for successful early resolution through mediation in any new model.

And finally the Brexit Factor

Possibly the most historic and significant element of the Unison judgement was its tone and timing. To truly grasp this you need to assess it against the paucity of humanity and scale of misery evident in the original lower court judgements leading up to the Supreme Court appeal, going back Unison’s first JR attempt when the fees were introduced in 2013.

The first attempt failed principally because the Court was unwilling to challenge the Government’s assertions about likely discrimination, claiming, “pre-maturity”, or not yet enough evidence to prove the case. The second assessment had access to data about the immediate impact, including an 84% reduction in equal pay claims and 100% reduction in terms and condition claims – both evidently disproportionately likely to be brought by those with protected characteristics. Yet this lost primarily on a proportionality test, with the court essentially saying people could pay if they chose to. Efforts at presenting hypothetical cases were dismissed with potential examples of single parents choosing between buying school uniform or bringing a claim after taking account of disposable income dismissed with a tone of Victoriana – buying children school uniform, or occasional sweets and treats deemed ‘a choice’ parents were free to exercise instead of pursuing their legal rights. It was deemed not for the taxpayer to further support those on benefits, the ET backing the Government’s assertion that there was no wider social benefit from employees having access to Tribunals, any benefits being limited to individuals’ impacted.

These judgements opened up those making them to traditional criticism of judicial detachment and an unwillingness to challenge Government decisions.

In this context, the way in which the Unison judgement forensically dismantles such defences is even more startling. The evidence of discrimination was viewed as overwhelming. The choice argument was blown apart, with the Joseph Rowntree Foundation’s measure for affordability accepted instead of the Government’s and an assertion that everyone had a wider right to a level of ‘normal’ human existence - with criticism that for example, buying school uniform was not optional and someone’s children shouldn’t suffer so parent(s) can exercise their legal rights. The Supreme Court then went further, asserting an evident social benefit from knowing you have rights at work, delving back to the Donovan Commission in the late 1960’s and the creation of ET’s.

This was, without doubt, the Supreme Court exerting itself and taking the Government on in uncompromising terms. It would be churlish to suggest this was personal – but the timing isn’t, in my view, coincidence. Post-Brexit the UK courts will be back in the lead role, centre stage, no longer being able to defer to or play in the shadow of the ECJ or ECHR. There may be a huge distance between the Supreme Court decision and the lower courts’ view in the Unison case, but it is clearly consistent with their view on Parliament needing to debate Brexit terms. Liz Truss’s woeful failure to defend the independence of the judiciary after the right-wing media assault that followed, may have stiffened the judges resolve and even possibly added relish to their language, and no doubt the Courts will begin to reflect a lack of patience in seeing a repeat offender before them - but the Supreme Court are also only fulfilling the enhanced role they’ve been forced into playing. The Unison judgement is further evidence of the growing importance of our Supreme Court – and encouragingly its growing willingness to hold our Government to account. We can expect more errant Lord Chancellor’s to be back before their Lordships – at least until the Government reconnects with a sense of humanity and softens it’s aggressive stance against those worse off than themselves.

In this, Liddington’s now on probation!

References:

1. During Justice Questions, in answer to a question from Ellie Reeves MP on 8th September 2017