Since the publication of Struck Out, (which we have made available on the Pluto site for half price this week) Dave Renton has been reporting on the issues surrounding employment tribunals. Last month, The Advisory, Conciliation and Arbitration Service (Acas) founded the early conciliation scheme which, in its first month of operation is understood to have received 4,000 applications. Considering Acas promotes itself as an organisation whose purpose is to improve working life through the promotion and facilitation of strong industrial relations, Renton reveals the new scheme as having anti-working class motives:
‘Since Tuesday 6th April, all workers wishing to bring employment tribunal claims will first have go through mandatory conciliation with Acas. On the face of it, the process is perfectly simple. All that is asked of the worker is to fill out a short form (https://ec.Acas.org.uk/). They will be contacted by an Acas officer who will contact them to establish if it is possible to settle their claim.
If the worker and their employer do settle, both sides will have been spared the distress of a lengthy court battle. If settlement is not possible, the claimant will have wasted a month but on receiving confirmation from Acas that the claim did not settle, they will then be able to proceed with an ordinary tribunal claim.
Put like this, the process must seem straightforward, and if anything benign. There is certainly nothing wrong in principle with getting workers and employers to talk to each other early in a claim. The problems come when this simple seeming process is placed in the context of what has been a two year assault on ever worker’s rights, which has already led to an 80% reduction in the number of Tribunal claims.
Since April 2012, these reforms have included extending the time an employee must have worked for an employer from one to two years before they can bring a tribunal claim, capping the compensatory award for unfair dismissal (which was previously three times the average wage) to no more than a single year of that employee’s salary, introducing “protected conversations” in which an employer is allowed to threaten an employee with dismissal but the worker is not allowed to tell the tribunal what the employer said, and introducing tribunal fees at the punitive rates of a combined £390 (hearing and issuing fee) for wages claims and £1300 for unfair dismissal or discrimination claims. These fees are markedly higher than their counterparts elsewhere in the legal system (an appeal to the Court of Appeal costs a mere £465 by comparison); and it is unjust to burden the burden of paying them on workers only when it is employers who have the most means.
While fees in particular were not mentioned in either of the Coalition partner’s manifestos, and while in the consultation documents the government tried to maintain the fiction that this was a neutral intervention unlikely to cause either workers or employers particular hardship, the true political justification for fees was set out last month when Matthew Hancock MP, Minister of State for Skills and Enterprise, told the readers of the Daily Telegraph that fees were necessary to remove from the system vexatious discrimination claims, which were ‘squeezing the life and energy from Britain’s wealth creators’.
Being tough on people who object to racism and sexism may pander with a Tory audience jitter about voters defecting to UKIP, but it stands to reality in as close a relationship as pre-Copernican physics does to the shape of the universe.
Most tribunal claims are not vexatious. We know this because the government publishes each year’s statistics on the outcome of tribunal claims, and in any year the number which succeed at a final hearing is always around 60%.
We also know this because there are Tribunal remedies designed to counter claims which Judges consider vexatious – namely costs order. In 2012/13 – the year before the fees regime was introduced –tribunals disposed of 107,420 claims but made only 522 costs awards. The failure to make costs orders is not because judges are liberals and subversives made bad by years of reading the Guardian, but because even before frees were introduced workers had an accurate sense that Tribunals are an immensely costly process, in time (few claims are heard in their entirety in less than a year), emotional effort and financially.
Just on finance: imagine trying to persuade a lawyer to take your case in a system where the median dismissal and discrimination awards are around £5,000 and even a simple claim may take a day or two days to be heard, as well as days and days of preparation. When, as is often the case, the worker has been dismissed where are the funds to pay for representation?. Then factor in the low awards may be Tribunals (typically around a quarter of the worker’s actual loss), the Tribunal’s unwillingness to order the reinstate of unfairly dismissed workers (running at approximately 1 in every 500 successful claim) and the great scandal of employers’ collective refusal to pay Tribunal awards (less than half of all awards are paid within six months).
In practice, workers themselves and their advisers filter out the worst claims.
Acas conciliation is being introduced, in other words, in a context of a system which was already heavily loaded in employers’ favour and where the Coalition has been doing all in its power to reduce the value of workers’ claims, and to reduce the positive financial incentives on employers to settle them.
In this context, the safest predictions to make are that the average amount of a settled claim are likely to be significantly less in 2014 than they were in 2013; many claims will not settle (but workers will lack the resources to go to the Tribunal afterwards); and that there will be a further deterioration of workplace conditions in close relationship to a further fall in the number of Tribunal claims.’
David Renton is a barrister at Garden Court chambers in London and appears regularly for claimants at Employment Tribunals. Before being called to the Bar, Renton was a lecturer, senior researcher, and visiting professor in the UK and South Africa. He writes on employment law for the Haldane Society of Socialist Lawyers and is the author of Struck Out (Pluto, 2012), and Fascism (Pluto, 1999).
His blog is available to peruse here: www.struckout.co.uk/blog/