The Government could land itself in a legal quagmire if it attempts to
introduce charges for employment tribunal applicants, a leading employment
lawyer has warned.
Levying fees while denying legal aid for employment tribunal cases in
England and Wales is likely to lead to challenges under article 6 of the
European Convention of Human Rights which guarantees the right to a fair trial.
"Forms of aid are available to claimants in other courts where charging
applies, but tribunal applicants will have the worst of both worlds – fees on
the one hand and no assistance on the other," said Rachel Dineley, partner
at Beachcroft Wansbroughs.
"The Government may have done well to leave charging alone because
there will now be an even stronger call for some form of aid, given the
position in Scotland."
The Scottish Executive introduced legal aid for tribunals earlier this year
in an attempt to head off challenges under article 6 but the Government has
shown no signs of following suit.
Its proposals on reforming the tribunal system, on which consultation closes
at the end of this month, made no mention of aid, but said those on benefits or
in "genuine need" would be exempt from charges. Charging a
"modest amount" to use the system would bring a faster and more
customer focused service and would raise funding for improvements in the
tribunal and conciliation process, DTI minister Alan Johnson said.
The Government’s paper also proposed plans to make internal dispute
resolution procedures compulsory and to penalise employers and employees who
fail to use such grievance procedures. It was welcomed by employers who are
keen to see the number of tribunal applications reduced.
Employers’ body the CBI released figures last month showing the business
cost of tribunals has risen by 50 per cent in the past two years to £633m.
"We need a fair, efficient tribunal system but we also need all
alternatives excluded before anyone gets near a courtroom," said director
general Digby Jones.
The Industrial Society’s head of policy Patrick Burns said charging was not
the way forward as it would "discriminate against low earners and ration
justice to the better off". He said the Government should increase funding
"A major expansion in Acas services would repay the Government’s investment
by curbing the tribunal explosion while helping employers install the kind of
procedures that mean problems don’t turn into disputes," he said.
Key tribunal reform proposals
– Employers must have formal dispute
– Employers and employees must use this before recourse to law
– Awards may be cut if internal procedures not followed
– Tribunal applicants must pay a charge unless on benefits or
in "genuine need"
– Limited extensions to time limit for lodging claims where internal
procedures still in play
– Fixed period of conciliation
– Fast track system for certain jurisdictions such as unlawful
deductions and breach of contract
– Discretion for tribunals to award wasted non-legal costs for
– Power for presidents of tribunals to issue practice