Courts and Tribunals Fees

Angela Crawley Excerpts

Monday 4th July 2016 Commons Chamber

[Mr Djanogly]

I am coming on to alternative ways of funding. The starting point is to get cost recovery and then to look at individual circumstances, where necessary. I would have liked hon. Members to spend a little more time talking about the remission system rather than fees—perhaps one of my hon. Friends is about to do so. More winnable cases leads to more of them being settled before going to tribunal, but even if this is an access-to-justice issue it should be dealt through the remissions system rather than the fee itself.

I certainly recall personally the significant numbers of businesses complaining that the threat of employment claims alone was enough to put them off employing more people. Interestingly, this was very much more prevalent among small businesses than large ones. Indeed, this is reflected in the Justice Committee’s report, as the Chairman said, which clearly shows the CBI to be more relaxed on the issue than the FSB. This is undoubtedly because it is the larger companies that have the large HR departments that can manage claims as part of their overall business. For small businesses, processing a claim, let alone taking time off to go to tribunal, can take up an impossible amount of the principal’s time.

[Angela Crawley (Lanark and Hamilton East) (SNP)]

Does the hon. Gentleman accept that if the employer is given an unfair financial position or advantage over the claimant, ultimately, regardless of whether it is a big or a small firm, the greatest cost will be borne by claimants themselves?

[Mr Djanogly]

The hon. Lady talks about unfair advantage, but I am not sure how she defines it, particularly if it is a single employer. Most of the FSB’s membership are two-person companies. If the hon. Lady is saying that it is unfair if it is one employer against one employee, I would say it was not. The answer to her question is that it would depend on the circumstances.

There grew a culture of settling claims, even weak claims, so that they would simply go away. The fact remains that there is more to business confidence than statistics. If the indirect impact of fees has been to change this perception among business owners, which I feel it has, fees have made a significant contribution to an economy that is delivering the creation of the highest level of employment the UK has ever enjoyed. We should be cautious about meddling with that.

The big change from when I was a Minister in the Ministry of Justice is the use of ACAS conciliation. I should be interested to hear more from the Minister, but the figure of 83,000 claims being dealt with by ACAS at an early stage sounds very promising indeed. It was the policy of the last Labour Government and then of the coalition Government and this Government that alternative dispute resolution should be promoted as a cheaper, quicker, more consensual and less stressful form of sorting out problems, including employment disputes. I shall be interested to hear whether the Minister has plans to extend the use of ADR further still.

I note that, on access to justice, the Justice Committee’s report is rather limited to looking at the status quo—fees versus remissions, which seems to have a feeling of trade union influence.

--- Later in debate ---

[Angela Crawley (Lanark and Hamilton East) (SNP)]

I shall focus on three key points that are essential to this debate—the fundamental principle of access to justice, the clear fact that the introduction of fees is a barrier for women who are pregnant or experiencing maternity discrimination, and the post-implementation review of the introduction of tribunal fees. I am sure the Minister will pay close attention.

Employment tribunal fees have been mentioned by many hon. Members primarily because 54,000 women are forced out of their workplace every day by discrimination. If there was a need for evidence that the tribunal fees system is not working, that is it. Since the introduction of employment tribunal fees in 2013, there has been a 76% decline in the number of tribunal fee claims.

I will dispense with statistics for now and highlight some of the reasons employment tribunals exist. They are intended to assist not just women, but any worker who faces unfair dismissal or discrimination in their workplace. Such pressures are compounded by the fact that those people are often the most vulnerable in society. Despite many calls from across the Opposition Benches, I suspect that the Minister is not listening to any of the arguments that have been made thus far about employment tribunal fees being tantamount to a barrier to access to justice. They compound discrimination against women, in particular in maternity discrimination cases, but they can affect all workers.

We have heard from trade unions about when these issues compound the experiences faced by many workers. The trade unions have focused particularly on those on zero-hours contracts, who are offered little or no job security. If they bring a challenge against their employer, they may have no further work and no further hours, so they will not be able to put food on the table to feed their families. Unfair dismissal therefore affects not just women but many workers across the spectrum.

ACAS—the institution the Government proudly highlight as the main arbitrator in this—has indicated that 26% of people simply did not progress a claim, because the tribunal fees put them off. If their own statistics are not enough to tell Ministers the system is not working, I do not know what is.

Working Families has highlighted that there is a growing category of rogue employers—something the Government have not seen fit to address. Siobhan Endean, from the Unite trade union, has indicated that employers are confident that claims will not go to a tribunal, because people cannot afford the basic £1,200 fee that would be imposed on them to implement proceedings in the first place.

The Equality and Human Rights Commission has rightly highlighted the severe impact on women. Its review was done in conjunction with the Department for Business, Innovation and Skills, so the Ministers have further statistical evidence that their tribunal fees system is not working.

Some 77% of people have experienced negative or potentially discriminatory practices in their workplace. There has been a 76% decrease in the number of people who have gone to tribunals. As one of my colleagues said earlier, that cannot be attributed merely to vexatious or unmeritorious claims—it is clearly because the fees are a barrier. I cannot emphasise that enough.

The Women and Equalities Committee conducted a review of pregnancy and maternity discrimination issues, and one of our key findings was that the three-month time limit is insufficient. It is probably the furthest thing from a pregnant woman’s mind to start filing a claim against her employer. However, even if the time limit were extended to six months, the bottom line is that it would be completely impractical for any woman who has just had a child or who is pregnant to go through this procedure.

Joeli Brearley, from Pregnant Then Screwed, said she was unable to pursue justice, because she was pregnant and was informed that going ahead would be stressful and have a negative impact on the birth of her child. That is the reality for many women. Why will the Government not understand the simple fact that three months is insufficient for women who are pregnant and who have experienced discrimination in the workplace? They simply cannot access the justice they deserve. I hope the Minister will give that point about the time limits due consideration, because it is absolutely pertinent.

When the Committee visited Portsmouth, women told us they are subject to harassment and bullying and are refused time off for antenatal classes. Maternity Action highlighted the fact that the overwhelming majority of women simply cannot afford tribunal fees. Aside from fully abolishing or hugely reducing fees—I understand that the Justice Committee reports suggests that—simply increasing the time limit would make a sizeable difference to the number of women who can progress claims. I sincerely hope that Ministers will bear that in mind.

The fact is that less than 1% of maternity discrimination claims proceed to tribunal. That means that 99 out of every 100 women who experience discrimination have no legal redress whatever. With the greatest respect, therefore, I am going to quote the Under-Secretary of State for Justice, the hon. Member for North West Cambridgeshire (Mr Vara). A few months ago, I asked him whether he would continue to defend the introduction of tribunal fees—I suspect they are a means to eliminate the budget deficit, but they also fail to address the fundamental principle of access to justice. You said we require “a responsible approach” to funding services, so I am going to ask him a few questions. Is it responsible to allow people to be put out of work? Is it responsible to allow rogue employers to act as they wish, regardless of employment law? Does the knock-on impact on economic growth really help to redress or reduce the budget deficit?

I think I have clearly made my three points. One was about the fundamental principle of access to justice. One was about the time limit, and the potential to increase it from three months to six months, as recommended by the Maternity Action Group, Pregnant Then Screwed and many other organisations. I have also outlined to you—

[Madam Deputy Speaker (Natascha Engel)]

Order. I have let this go a few times. When the hon. Lady says “you”, she is addressing the Chair. Could she refer to “the Minister” or “the hon. Gentleman”?

[Angela Crawley]

I am sorry, Madam Deputy Speaker. If the Minister addressed each of those points in turn, I would be eternally grateful.

The conclusion I would like to draw is that the introduction of fees is a fundamental barrier to access to justice for not only women but all workers. The simple fact is that the time limit could be extended, and that should readily be considered. I hope the Government will do that. Ultimately, I would call for the outright abolition of tribunal fees, because there is no statistical evidence to suggest that they have decreased the number of vexatious or unmeritorious claims; all they have done is limit the number of women, in particular, who can bring claims. If the Government will not commit to abolishing fees, will they at the very least consider the Justice Committee’s recommendation of a significant reduction? However, I and my SNP colleagues would call for them to consider outright abolition. The First Minister said that when this area of law is devolved to Scotland, we will abolish tribunal fees if it is possible to do so. Will this Government make the same commitment for workers across the UK?

[The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara)]

Where will you get the money?

[Angela Crawley]

The Minister proves my point: budget deficit reduction should never come above access to justice.

With no financial penalty, Scottish women may soon face fewer barriers when they exercise their employment rights and seek access to justice. The same may not be said for other women across the UK. It is time for someone to stand up for hard-working women and other workers across this country and to demand equal access to justice for everyone across the UK. Women have waited three years for the post-implementation review of tribunal fees. Should they have to wait another three years for the Government to clear their debts and to consider this issues seriously? Ultimately, access to justice is the fundamental principle at stake here. I hope the Government will hear my questions and answer them.