Victory on employment tribunal fees: this is what justice feels like | Jason Moyer-Lee

Juana and Julio are a Colombian couple who came to Europe in search of a better life. After years of working in factories in Spain they fled the economic crisis there, came to London, and started work as cleaners. For years they did not have written employment contracts despite having requested these on numerous occasions and were not always paid on time for the work they did; sometimes pay packets would be missing hundreds of pounds. Unable to resolve these matters, Julio and Juana joined three of their colleagues in submitting an employment tribunal claim against their employer for various unlawful practices. Luckily their union, the Independent Workers’ Union of Great Britain (IWGB), paid their £2,400 of employment tribunal fees, otherwise they would not have been able to bring their claims. A number of months later their employer openly admitted to unlawful behaviour, issued the missing contracts and payslips, paid thousands of pounds of overdue wages and thousands more in compensation.

However, it is not just Juana and Julio who’ve had a rough time. Low-paid workers in the UK in general have not had it easy in recent years. From making it harder to claim unfair dismissal to restricting the right to strike, the Tories’ assault on workers’ rights has been thorough and wide-ranging. And no single move better epitomises this assault than the coalition’s decision to introduce a vicious fee regime for employment tribunals, which can cost workers up to £1,200 to submit a claim, which has now unanimously been found to be unlawful by the supreme court.

Even held to the government’s own standards, the fees regime has been a massive failure. The supposed aims of the fees were to transfer costs from taxpayers to tribunal users, deter unmeritorious claims, and encourage earlier settlements. But because fees were so high as to deter people from submitting claims all together, the government didn’t recoup anywhere near the amount of money necessary to transfer a significant portion of the costs from taxpayers to “users”. The evidence shows that the proportion of successful claims has actually gone down since the introduction of fees. And fewer cases have been settling, likely because employers want to wait and see if the worker is willing to pay the fee before deciding whether they face any risk.

But regardless of whether or not the Tories are competent enough to devise a policy which meets its own aims, the fees regime has been a disaster for working people, pricing many out of justice. In the words of the supreme court judgment: “The fall in the number of claims has in any event been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable.” Yet the prime minister still has the gall to try and portray herself as on the side of workers. Indeed last year Theresa May even hired Matthew Taylor, Tony Blair’s former policy director, to conduct a review into modern employment in order to make recommendations on protections for workers. Taylor’s review was focused on people in “atypical” work, in particular those who work in the “gig economy”. The problem of employment rights among these workers is predominantly one of a lack of enforcement of existing law. For anyone who wonders why courier and private hire companies have been able to deny their workers employment rights for years even though all of the recent tribunal decisions have shown this to be unlawful, tribunal fees are a central part of the answer. This is why we at the IWGB have been consistently calling for the elimination of tribunal fees as one of the best ways to address the employment rights problem of the “gig economy”. It’s also why we intervened to present legal arguments in Unison’s tribunal fees case before the supreme court.

While May’s government defended its right to impose tribunal fees on low-paid workers, and Taylor’s review produced over 100 pages of predominantly useless fluff which did not include a recommendation to entirely eliminate tribunal fees, workers continued to be priced out of justice and employers allowed to trample over “rights” which had become all but meaningless. May’s hypocrisy and Taylor’s uselessness become all the more apparent when compared to the decisiveness of today’s supreme court decision. Holding the fees regime to be unlawful as a matter of both British common law and EU law, as well as discriminatory against women, the seven justice panel was not impressed. Luckily for workers, vacuous soundbites and empty rhetoric aren’t of much assistance in the UK’s highest court.

But the fundamental message from today’s decision echoes what the IWGB has been at pains to emphasise: that rights without enforcement mean nothing. This is as true for the cleaner who hasn’t been paid as the Uber driver who’s told he won’t be getting any holidays because he’s actually running his own small business. In the words of the judgment: “Courts exist in order to ensure that the laws made by parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of members of parliament may become a meaningless charade.”

Once it gets past the humiliation of having to reimburse every tribunal fee it has unlawfully charged, the government will no doubt respond to today’s judgment by trying to come up with a new fees regime which does not fall foul of the law. But for now workers and trade unions should rejoice at today’s momentous victory. This is what justice feels like.