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By Lord Lea of Crondall - 19th October 2011
Lord Lea of Crondall argues against changes to employment tribunals and criticises the government for using "a sledgehammer to crack a nut."
Despite not being in charge of the Department for Business or the Ministry of Justice, it was George Osborne who announced, to wild applause at the Conservative Party conference in Manchester, the introduction of a fee of £150-£250 for a worker launching an employment tribunal case from April 2013, and at least £1,000 if it goes to a full hearing. A short consultation period will begin this November – not about the principle, but about the amount – a travesty of the democratic process.
So, what is the evidence for these swingeing new charges, upsetting a system which has worked in an even-handed way for a generation, but which is now under some stress because of the recession?
In fact, Mr Osborne offers no evidence at all, simply an assertion, which no doubt went down well with the Tory backwoodsmen – no doubt many of them are small employers to boot – that he wished to avoid successful businesses "seeing their achievements destroyed by vexatious appeals to an employment tribunal."
On closer examination this turns out to be a sledgehammer to crack a nut, and penalises many thousands of workers who have met what they consider to be – and arguably before a tribunal are – serious injustices at work, injustices which are indeed contraventions of the law on such matters as equal pay or unfair dismissal.
This comes, moreover, at a time when the government is supposed to be in listening mode, rather than announcing unilateral conclusions. Neither the BIS consultation document on Resolving Workplace Disputes nor the accompanying Regulatory Impact Assessment contains any empirical evidence which demonstrates that a significant proportion of employees currently use the tribunal systems to pursue unmerited cases.
It is not evidence to cite employers who have 'perceptions of both weak or vexatious claims'. Tribunal judges can already impose a deposit order of £500 at the prehearing review, where they believe the claim has little reasonable prospect of success. They also have powers to strike out a claim at the hearing on the grounds that it is vexatious or has no reasonable prospect of success.
The fact is that all the successful economies of Northern Europe have arrangements of one sort or another in line with these sorts of procedures. Apart from some strange goings-on in the City of London – which Mr Osborne may have some claim to know about – his perception of industry is a caricature.
A disproportionate number of cases are from low-paid workers, women and ethnic minorities, who are likewise disproportionately unable to put forward significant upfront sums. So these changes will go against the proclaimed goals of social policy as well. Moreover, 80 per cent of claims are settled either between the parties or at pre-tribunal hearings, with the tribunal itself acting in effect as a final point of appeal.
If we are going to have an evidence-based policy towards industrial matters, the conclusion must be that if it is the perception which is inaccurate, rather than the reality, then surely it is the duty of public policymakers to endeavour to change the inaccurate perception, rather than pander to it.
Mr Osborne is clearly motivated more by the financial advantages to the Exchequer of a heavy deterrent – not to mention the sedulous effects of employer lobbyists and donors to the Tory party.
David Lea has held various roles in the TUC, most notably assistant general secretary (1978-99). He was raised to the peerage in 1999 as Lord Lea of Crondall and sits on the Labour benches.
Article Comments
The Employment Tribunals have not been dispensing justice fairly which shows how distant they are from the people; especially minority ethnic citizens. A change at the helm of this service is highly recommended.
Yinka Oyesanya
19th Oct 2011 at 10:21 am
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