Monday, 27 March 2017

Tribunal Fees

Whilst waiting for the next twist in the TR omnishambles, this could be another bad news day for the government:-

Tribunal fees "a clear violation" of UK & EU law, says Oxford University report

Oxford University experts in economics, Associate Professor Abi Adams, and the law, Associate Professor Jeremias Prassl, have described the Coalition government's introduction of employment tribunal fees as "a clear violation" of UK and EU law.

In an article to be published in the Modern Law Review journal on Monday March 27 2017, the academics describe the policy as "disproportionate" and claim it illegally denies workers access to justice. 

In an analysis of government data, the experts discovered that for up to half of all claimants with a good chance of succeeding at tribunal, the expense of bringing their case outweighs the level of the expected payout, meaning the worker would lose money by taking unscrupulous employers to task.

Dr Adams explained: "The average award for some employment claims, such as unauthorised deduction from wages, is as low as £600. With fees ranging from £390 to £1,200, it does not make economic sense for many claimants to enforce their rights."

What's more, the academics found that tribunal fees may be having the opposite impact of the government's reported aims: to lower the cost to the taxpayer of the tribunal system, to encourage early settlement of cases, and to deter vexatious claims.

Instead, the few claimants who are bringing vexatious claims were found to be the least likely to be deterred by the fees, while employers are disincentivised from making a settlement because they know there is a high chance that workers will simply give in rather than pay the cost of taking their case to court.

The number of claims going to tribunal dropped by 70% within the first year of the fees being introduced, and the cases hardest hit have been those involving low-income, zero-hours workers, who are often expecting lower payouts that will not cover their costs, the report suggests.

Dr Prassl said: "The Employment Tribunal fees are a clear denial of access to the courts, which has been a cornerstone of our justice system since Magna Carta. The conclusions of the Prime Minister’s Taylor Review into Employment Rights will be meaningless without a credible way for workers to seek justice."

The Institute of Employment Rights agrees that without the ability to enforce their rights at tribunal, workers can not simply be "empowered" to speak up against unscrupulous employers, as Taylor's preliminary recommendations - which largely revolve around increasing workers' awareness of their rights - seem to suggest.

However, we would add that it is not enough to simply remove tribunal fees, as the current system of placing the onus on workers to police their own rights falls short of effective enforcement. Individual workers have significantly less power, and access to significantly fewer legal resources, than their employers. We argue that the promotion of collective bargaining at both sectoral and enterprise levels is necessary to allow workers to negotiate for fair pay and conditions, as organising in trade unions is the best way to equalise the imbalance of power between employers and their staff. We also argue that an independent Labour Inspectorate should be established to ensure employers are following both the law and any collective agreements relevant to them.

Read more about the proposals in our Manifesto for Labour Law - 25 recommendations, the principles of which have been adopted by the Labour Party.

The conclusions of the Modern Law Review report support Unison's ongoing battle against the implementation of employment tribunal fees, which will be heard in the Supreme Court on Monday March 27 2017. Referring to the union's judicial review, Dr Prassl said: "The lower courts’ approach was inappropriately narrow in its interpretation of English and European law: a right without a remedy is of little value".


  1. At a tangent but I just rediscovered this poignant quote in a piece by Lol Burke from 2013 (britcrimsoc journal#72):

    "After more than a hundred years of work with offenders, often with little encouragement or recognition for their efforts, a small island of decency and humanity in the criminal justice system may be disappearing" (Mair and Burke, 2012: 181).

  2. This makes for interesting reading:


  4. Could be TR:-

    Huge nuclear contract scrapped over tender errors

    A botched tendering process has forced the National Decommissioning Authority to terminate a multi-billion pound nuclear contract nine years before it was due to end.

    Energy secretary Greg Clark , announced today that he was launching an inquiry into the mistakes that led to the £6.1bn contract to decommission 12 Magnox sites, along with a reactor at Sellafield, being scrapped.

    Cavendish Fluor Partnership (CFP) won the tender in 2014. CFP, a joint venture between Babcock International and American firm Fluor. Today’s news caused Babcock’s shares to drop on the Stock Market.

    Mr Clark’s statement indicated that the decision was not a reflection on the companies involved, but on a botched tendering process.
    It has become clear to the NDA through this consolidation process that there is a significant mismatch between the work that was specified in the contract as tendered in 2012 and awarded in 2014, and the work that actually needs to be done. The scale of the additional work is such that the NDA board considers that it would amount to a material change to the specification on which bidders were invited in 2012 to tender.

    As a result, the contract will be terminated in 2019.

    Now the NDA has agreed financial settlements - believed to be in the region of £100m - with two other unsuccessful bidders for the tender.

    Mr Clark said: "Taxpayers must be able to be confident that public bodies are operating effectively and securing value for money. Where this has not been achieved such bodies should be subject to rigorous scrutiny."

    He announced an inquiry into the tendering process and the subsequent contract, which will be led by Steve Holliday, the former chief executive of the national grid.
    This was a defective procurement, with significant financial consequences, and I am determined that the reasons for it should be exposed and understood; that those responsible should properly be held to account; and that it should never happen again.

    Last updated Mon 27 Mar 2017