UK workers are being illegally denied access to justice, according to Oxford academics in a forthcoming article in the journal, Modern Law Review. Their conclusions support an ongoing legal challenge to the employment tribunal fees regime, heard by the Supreme Court this week.
In their article, Associate Professor Abigail Adams, from the Oxford Department of Economics, and Associate Professor Jeremias Prassl, from the Oxford Faculty of Law, argue that the 2013 Order introducing Employment Tribunal Fees is a 'clear violation' of long-established UK and EU law, as the cost of bringing a claim now outweighs the benefit of a potential win for many claimants. They describe the government’s introduction of the measures as 'disproportionate', especially when seen in the light of the government’s own policy goals.
Since 2013, fees of up to £1,200 (more than a month's salary on the minimum wage) have been charged to bring a claim before the employment tribunals. The article notes that the effects of this reform have been ‘dramatic’ as within a year, claims dropped by over 70 per cent and have not recovered since. Dr Adams and Dr Prassl analyse official government data on claimant behaviour, including detailed records of award size and costs incurred. They find that up to half of workers with a high chance of winning if they pursued the case would expect to lose money. This helps explain why claims for relatively low amounts of money, such as those typically brought by low-income, zero-hours workers, have been hit especially hard by the policy, says the article.
With fees ranging from £390 to £1200, it does not make economic sense for many claimants to enforce their rights...fee levels should be reduced in line with the value of the claims
Dr Abigail Adams from the Department of Economics
Dr Prassl says: '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 week justice.'
Dr Adams comments: 'The average award for some employment claims, such as unauthorised deduction from wages, is as low as £600. With fees ranging from £390 to £1200, it does not make economic sense for many claimants to enforce their rights.'
The new fee regime was designed to lower tribunal costs, encourage early settlement, and deter vexatious claims said to waste employers’ resources. The Oxford academics found that the changes may be having the opposite effect. For example, unscrupulous employers are no longer willing to settle cases, knowing that in many instances it won’t be rational for workers to bring a claim. Based on their findings, they believe that the few genuinely vexatious litigants in the system are likely to the least deterred by the prospect of fees.
The academics conclude that if recent concerns about workers’ rights, from the Uber case and Sports Direct to the Prime Minister’s Taylor Review, are to change anything in practice, the tribunal fees regime must be struck down, repealed, or significantly revised.
'Suffice it to say, at the very least, that fee levels should be reduced in line with the value of the claims, and greater scrutiny needs to be given to the timing of fee payments,' Dr Adams concludes.
The article notes that the judicial review proceedings that followed the introduction of the new fees upheld the Fees Order because litigants could not show that any one claimant had been unable as opposed to unwilling to pay the fees.
Dr Prassl argues: 'The lower courts’ approach was inappropriately narrow in its interpretation of English and European law: a right without a remedy is of little value.'
The academics say that the measures should have been scrutinised to see whether the introduction of fees violated the very essence of the right of access to a court or tribunal, and whether the measures were a proportionate way of achieving the government’s stated aims.
The paper, 'Vexatious claims: Challenging the case for employment tribunal fees', by Abi Adams and Jeremias Prassl will be published in Modern Law Review.