Employment tribunals are a key way for workers to protect themselves against unscrupulous employers but in recent years the number of people going to tribunals has dramatically fallen. This is largely because of the introduction of tribunal fees, whereby workers had to pay, in some cases, thousands of pounds up front in order to have their cases heard. According to figures from the Ministry of Justice quoted by the BBC, the number of cases going to tribunals has dropped from around 5,000 per month before tribunal fees were introduced in 2013, to around 1,600 per month after the introduction. However this situation has finally been remedied, as the Supreme Court has ruled that these punitive fees are against the law.
After a spirited campaign by Unison, all seven Supreme Court judges agreed that existing laws were too restrictive and constituted a breach of workers’ human right to access justice. Consequently, the judges ruled that tribunal fees violated European and English constitutional law. Unison General Secretary Dave Prentis welcomed the news and said: “the government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too”. The trade unions are right to be happy as the government has been seeking to further reduce their influence in society, and deterring workers from bringing employment tribunal cases was a key way of handicapping this vitally important movement.
As a result of the ruling, Justice Minister Dominic Raab has said that the government will “take immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid”. However, a noteworthy part of his statement, as identified in The Independent was as follows: “the Government has to consider access to justice, the costs of litigation, and how we fund the tribunals…the Supreme Court recognised the important role fees can play, but ruled that we have not struck the right balance in this case”. This aspect of Raab’s statement clearly shows that government are planning to introduce new restrictions on trade unions, and we need to remain vigilant.
Because the House of Commons is so finely balanced, it is possible that the Tories would be deterred from introducing punitive legislation against trade unions, however the problem is that the Tories are relatively united when it comes to workers rights. Aside from a few moderate Tories, the party may be able to get through anti-trade union legislation if it is deliberately extricated from Brexit legislation. The Tories are divided on Europe and so if party leaders choose to introduce a separate workers’ rights bill, those divisions may be put to the side.
The changes to tribunals were set out in the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, also known as SI 2013/1893. This piece of legislation was a statutory instrument and therefore didn’t need to be vote on in the House of Commons, however it was voted on by the First Delegated Legislation Committee on 10th June 2013. There were 16 members of the committee: 8 Tories, 7 Labour and 1 Lib Dem. After a discussion that lasted for about an hour and a half, the order in front of them was approved 9-7. The Tories were joined by the only Lib Dem member of the committee, Gordon Birtwistle, and thus the measures were adopted.
I bring this portion of legislative history up to point to another reality of the current House of Commons. It is distinctly possible that the Lib Dems would vote against new legislation just so that they could stick into the Tories over Brexit, however it is also possible that they support any government plans to weaken workers’ rights. On some issues the Lib Dems are much better than the Tories, but workers rights is not one of them. The Lib Dems and Tories may make a trade on legislation to push through anti-trade union laws, and so we need to be on guard.
The news out today is the result of hard work and activism from these brave trade unionists. Unison were clearly right to take this to court and the money that the government shall return to people who paid these fees will make a substantial difference in many workers’ lives. However, the Tories are, if nothing else, persistent. People need to pay attention to this issue in the next few weeks, especially given the other more prominent pieces of legislation that the media will undoubtedly focus on. Until a government rooted in the labour movement is elected, we need to remain focused on protecting workers’ rights and taking the government to court when necessary.