Tribunal fees don't prevent 'vexatious' claims – they stop women coming forward about work sexism

When members of the House of Commons debated the effects of tribunal fees and their impact on access to justice in an almost empty chamber last week, a spotlight was briefly shone on the shocking impact the fees have had since their introduction in July 2013. A new report by the House of Commons Justice Select Committee reveals that since fees of up to £1200 were introduced, the number of employment tribunal cases has dropped by a staggering 70%.

One of the original justifications for the introduction of tribunal fees was the argument that they would help to deter 'vexatious' claims, thus avoiding unnecessary and time-consuming processes where claimants were just 'trying their luck' without a valid complaint.

Yet a number of expert witnesses pointed out to the committee that if that theory had been borne out, they would have expected to see a dramatic jump in the success rate of tribunal claims after the fees were introduced, which has not been the case. In fact, according to the Citizens Advice Bureau, the number of successful claims has fallen in relation to unsuccessful ones since fees were introduced.

The committee concluded that: "the timing and scale of the reduction following immediately from the introduction of fees can leave no doubt that the clear majority of the decline is attributable to fees", and that "the regime of employment tribunal fees has had a significant adverse impact on access to justice for meritorious claims."

It is particularly frustrating to see barriers being erected between employees and justice given that so few of those who experience discrimination or harassment in the workplace ever consider taking their case to a tribunal in the first place. Before the fees were brought in, a survey carried out by research company OnePoll, in February 2013, found that even at that stage, though two fifths of new mothers felt they lacked support at work, only three per cent had sought legal support over maternity discrimination.

More recent research by the Equality and Human Rights Commission (EHRC) found that in a survey of 3000 mothers, three quarters had experienced discrimination for having children, but just 1% took their case to a tribunal.

In light of those statistics, the notion that there is a problem with 'vexatious' claims pales in comparison with the much bigger problem that there are thousands of people experiencing illegal discrimination and not receiving justice.

This is an issue that has a particular impact on women, and those on low incomes and less secure –contracts in particular. The idea of having to pay an upfront fee of over £1000 before discovering whether your case will be successful immediately makes a claim out of reach for those without the disposable income to spare. And while some fee support is available for those on low incomes, a Citizen's Advice Bureau survey revealed that only 29% of respondents were aware of this and suggested that the remissions system was unclear and difficult to navigate.

A government survey of tribunal users before fees were introduced found that half (49%) would have reconsidered their claim had they been forced to pay a fee of just £250, far lower than the actual fees brought in. Young workers were more likely to be influenced by the requirement to pay a fee than those aged 65 or older and those on temporary contracts (72%) were most likely to say that the requirement to pay a fee would have influenced their decision. This compares to 45% of those in full-time, permanent employment.

Those on low earnings were also more likely to be deterred from pursing their claim because of fees. 65% of those with a gross annual salary of under £10,000 said they would be put off, compared to 24 per cent of those earning £40,000 or more.

These responses clearly suggest that the introduction of tribunal fees might have had a disproportionate impact on access to justice for vulnerable and low-paid workers – who are most likely to be women.

The problem is compounded by the fact that women are also disproportionately likely to experience workplace discrimination and harassment in the first place; bearing the brunt of sex discrimination, pregnancy and maternity discrimination and workplace sexual harassment. Recent statistics from the EHRC revealed that a shocking 54,000 women every year lose their jobs as a result of maternity discrimination and another study found that 60% of UK women had experienced inappropriate behaviour in the workplace from a male colleague.

Given that women already often face a hostile response when they try to speak out about experiences of sexism and harassment, it is easy to imagine that the risk of being undermined and disbelieved might be compounded by the requirement to pay a fee up front before knowing what the outcome of a case might be.

According to a report by the Trades Union Congress, between January and March 2014, just 1,222 sex discrimination claims were made to an employment tribunal, compared to 6,017 in the same quarter in 2013, representing a fall of 80%.

All this suggests that tribunal fees are having a devastating impact on access to justice for those in our society who need it the most. As MP Dr Rupa Huq succinctly put it during the parliamentary debate: "The thickness of the wodge in your wallet should not determine your access to justice".