However the reality is that the government are not committed to t doing away with all regulation, but just those rules protect workers. They are of course happy to introduce regulations that advantage employers. As David Cameron stated in his introduction to the Red tape challenge “these regulations cost businesses time and money”.
What such initiatives as the Red Tape challenge expose is the ideological basis on which this Government is operating. The belief that the market can solve all problems and that rules to make employers behave decently are unnecessary because, as pro free market theorists espouse, treating workers badly is not a rational way to build a successful business. They also believe that workers do not need to be protected from employers and if they do suffer injustice at work then it is their responsibility as individuals to solve the problem. Of course there is no recognition that some employers can be exploitative, discriminatory and just plan nasty. It is therefore no surprise that the system that gives workers access to seek legal redress is now under assault.
Employment Tribunals and Employment Appeals Tribunals were originally established as a semi formal system where workers could get access to justice easily and quickly without having to resort to the expensive route of civil litigation through the magistrates and high courts. Unfortunately over the last thirty years, driven by market philosophies, successive Governments made the system increasingly formal and more difficult to access in a drive to save money and keep employers happy. With the extension of the free market into all areas of our lives justice increasingly has a price tag.
Under the guise of austerity the latest assault on workers ability to seek justice through the tribunal system has come in the form of proposals from the Government to introduce fees in order to access industrial tribunals. The Government has come up with two charging options.
In option one; a claimant will pay an initial fee of £150-£250 to begin a claim, with an additional fee of £250-£1,250 if the claim goes to a hearing, with no limit to the maximum award. The second option requires claimants to pay a single fee of £200-£600, with the maximum award limited to £30,000. Claimants seeking a higher award will pay an additional fee of £1,750, paying up to £2,350 in total.
In proposing these changes the government is relying on contradictory arguments that are not backed up by evidence. Jonathan Djanogly MP – the Parliamentary Under Secretary for Justice opened his justification for these proposals in the governments consultation document by arguing that they are confronting the structural barriers that impede competitiveness, employer confidence and hinder the creation of jobs. He went on to identify cost and employer attitudes as major influences for proposing these reforms.
In putting forward arguments about cost the government has conveniently forgotten that the role of Industrial tribunals was expanded from their original remit of dealing with training levy disputes to other areas of worker/employer dispute as a way to provide an alternative route for workers to deal with grievances at work. With civil litigation being too costly for ordinary workers the only alternative was industrial action and with the number of working days lost through strikes reaching an all time high of 12.9 million in the 1970’s it was seen as prudent to provide a less costly way of settling employer/worker disputes.
What is worse is the government’s reliance on the nonsensical views of employers, many of which have no basis in the reality of what takes place in the Employment Tribunal system. The government has accepted the employer’s favorite argument that Employment Tribunals are hostile to them and likely to find in favour of workers complaints without challenge. In reality in 2010/11 only 8% of unfair dismissal cases were successful and when it comes to equality the likelihood of success is even more marginal with the number of successful cases dropping from 7% in 2009/10 to 3% in 2010/11. Alongside this employer assertions that workers submit tribunal claims in claims to at the drop of a hat are treated seriously but, according to the Governments’ own figures only 218,100 claims were registered in 2010/11 which is less that 0.8% of workers given that the UK workforce numbers 29 millions.
For Black workers, these proposals will further undermine their chances of obtaining justice through the Employment Tribunal system. Firstly, because in the proposals for option 1 the government is arguing that equality cases should attract a higher fee because they take more time and are therefore more expensive. This in effect will have a directly disproportionate effect on black workers and other minority groups as claiming discrimination will be more expensive. Secondly, because option 2 proposes the introduction of a £30,000 threshold and cap for compensation and a proposal that Employment Tribunals are prevented from making an award of £30,000 or more if the claimant does not pay the higher level fee. In practice this will this be the equivalent of a cap for compensation in higher value discrimination cases.
The government is seeking to present this as a fair system by using the cover of proposals for a remission system. Applicants would be entitled to claim back some or all of the fees depending on their level of household income. However in proposing a remission system the government have fail to take into account that the time limits for filing claims with an Employment Tribunal are shorter than for many other legal proceedings and that it will be difficult to operate the complex fees and remission scheme in time. There would therefore be significant risks that claimants will be unjustifiably barred from an Employment Tribunal.
Governments claim that a remissions policy will ensure claimants on low incomes will be able access to justice are misplaced and do not bear scrutiny. Many workers will not want to give detailed financial information about their household to their trade union or anybody else in order to claim remission. Also in reality many will have to initially pay the fees in order to access the tribunal because there will not be time to complete the remission procedures before the tribunal claim has to be submitted. Research commissioned by the TUC also suggests that a significant proportion of claimants who are paid at NMW and living wage rates will still be required to pay fees. Even the governments own figure suggest that 36% people who are part of households where the national minimum wage is paid will not be entitled to remission.
The government’s initial equality impact assessment does not deny that this is likely to have an impact on disadvantage groups but argues that it is a proportionate means of achieving a legitimate aim, i.e. saving money and that the remissions system will protect access to justice for those on low means and argument that the TUC rejects.
For Black workers, the effect of the introduction of fees along with the government’s recent decision to lengthen the qualifying period before unfair dismissal can be claimed will make the prospect of dealing with racial discrimination in the workplace through claims to an Employment Tribunal even more difficult. Currently 18.7% of black workers miss out unfair dismissal rights because they have less than 12 months service. This will rise to 32% of all Black workers have less than 2 years service with their current employer compared to 25% white from 6 April 2012 when the Government lengthens the qualifying period for making a claim of unfair dismissal to the employment tribunal from one to two years.
The introduction of market mechanisms to regulate the ability of workers to access justice is after all no surprise when considering that governments attitude to the unemployed is that they are feckless and lazy and who believe that the low paid should be grateful for having a job. Black workers should not be surprised by the fact that the government are in effect erecting barriers to protect employers and that they are not concerned by the disproportionate impact that this will have on dealing with race discrimination in the workplace. Eric Pickles recently published race equality strategy quaintly entitled “Creating the Conditions for Integration” spoke volumes about the Government’s view of black communities when it omitted tackling discrimination as one of the five key factors on which their integration strategy is based.
These changes are part of a concerted attack on the individual and collective rights of workers. They are a clear indication that black workers cannot look to government or rely on the law to deal with the problems they face. More than ever black workers need to collectively organise within the trade union movement to deal with the systemic discrimination meted out by employers as the price for justice and equality through the courts is becoming out of reach.
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