The biggest change to access to justice for victims of employment related discrimination over the last 14 months has been the introduction of employment tribunal fees. Prior to July 2013, victims of discrimination were able to lodge applications to employment tribunals without charges. After July 2013 a system of tribunal fees was introduced. The level of fees due for tribunal applications are dependent on the complexity of the case presented. Regrettably all discrimination claims are defined as “Type B” cases that are seen as more complex and as a result incur a fee of £250. This is considerably higher than the fee for the less complex “Type A” cases which only incur a fee of £160.
There is a system of fee remission for applicants on limited incomes or in receipt of certain benefits. It can be assumed that it is accepted that the initial process had difficulties as in June 2014, revisions were put in place to make the fee remission process easier. This included the withdrawal of the requirement of original copies of documents (letters confirming benefits received, wage slips etc.) and allowing letters confirming receipt of benefits to be acceptable if they were dated within three months (previously they had to be dated within one month of the application). In addition, prior to June 2014, incomplete applications for fee remission which were missing certain documents were automatically rejected rather that the additional documentation being sought. There are a number of difficulties that still remain with the remission system. Some of these include the very limited benefits that qualify for fee remission 1. Fee remission 2 is more problematic than fee remission 1 as a result of the multiple documents that need to be provided in order to assess income. Given that the largest increase in discrimination claims that our organisation has seen has been in respect of the pregnancy and maternity discrimination, it is concerning that being in receipt of Maternity Allowance is not a qualifying benefit for remission 1. This considerably increases the level of difficulty for claimants who are by definition in general experiencing a very difficult time of their lives with stresses related not only to the experience of discrimination but also potentially job insecurity, financial instability and if pregnant potentially health concerns and worries about the claimant themselves and their unborn child. Other difficulties with the fee remission service include applications being unsuccessful as a result of deposits in bank accounts that were not accounted for or being part supported. Given the length of time that discrimination complaints take to resolve with most applications taking over a year to resolve, it is likely that claimants financial circumstances will change considerably over such a period of time. A remission system based on a snapshot a particular period of time may not always be reflective of a claimant true financial position.
If employment tribunal application fees are not off putting enough the tribunal hearing fees are even more shocking with an eye-watering £950 for a tribunal hearing. Such large sums of money are bound to be off putting to claimants even if they do qualify for fee remission. The situation will undoubtedly affect life decisions of claimants and present a potentially stark choice to either pursue acknowledgement and settlement of an injustice that they have faced or make a decision to take up other potential offers of employment and move on. This situation in this way not only presents practical barriers to claimants seeking justice but also emotional and psychological ones.
Tribunal charges undoubtedly discourage applications for discrimination cases and since the system was introduced there has been an 80% reduction in applications to Tribunal and an 80% reduction in discrimination claims. A Trade Union Congress report “What Price Justice?” published in July 2014 analysed Ministry of Justice statistics and revealed the following key findings:
- Women are among the biggest losers – there had been an 80 per cent fall in the number of women pursuing sex discrimination claims. Just 1,222 women took out claims between January and March 2014, compared to 6,017 over the same period in 2013.
- The number of women pursuing pregnancy discrimination claims was also down by over a quarter (26 per cent).
- Race and disability claims have plummeted – during the first three months of 2014 the number of race discrimination and sexual orientation claims both fell by 60 per cent compared to the same period in 2013.
- Disability claims have experienced a 46 per cent year-on-year reduction.
Tribunal fees were brought in for a number of reasons. One of these was to reduce the amount of frivolous or vexatious claims. In general these were struck out at an early stage. Given the scale of reduction in tribunal applications not even the most hard hearted would begin to state that this is totally as a result of vexatious claims not being pursued. Another reason stated for the introduction of tribunal fees was the ideological shift to make the service financially supported by the people that used it. With such massive reductions that were not predicted on the introduction of the system, one wonders how the numbers actually stack up and indeed if the system itself is costing more to run and administer than it actually generated. For those of us that work in discrimination the tribunal system is a practice which can be argued is not achieving a legitimate end and thereby in itself unfairly discriminating.