In what has already been described as a brutal but elegant Judgment, the Supreme Court effectively told the Government that they just got it wrong over increasing Employment Tribunal proceedings issues fees for the purpose they did in 2011.
The statistics well show what effect this has had on people trying to enforce their rights. It has more than decimated the number of claims. Employers may have considered they got a bit of respite but as the statistics quoted in the Supreme Court Judgment show only about 40% of employers are paying up on Judgments they have received against them in any event.
The majority of Judgments in respect of Employment Tribunal matters are not great. It is, in County Court terms, what is described as the small claims track which doesn’t even rate above fixed levels of costs.
It is clear, however, from the Judgment the Fee Order concerned making the changes in 2011 is void ab initio – this is a quaint Latin phrase that just means “from the beginning”. That analysis is used to differentiate things that are only unlawful because an order is made that they are so.
That means that the Government has been in breach of all kinds of rights in operating a scheme whereby people have been denied what they should have got from the start. That in itself is quite shocking. It is more so when one realises that the Court service, as I read an article from yesterday, is actually on track to make a “profit” of £102 million out of its general increase in Court fees over and above its operating costs. And this all at a time when the service from the Courts is (and I can tell you simply and sincerely and from the bottom of my heart) getting worse and worse and worse. That is not because of the people who work in the service from the most lowly High Court Judges themselves but because there is simply too much to do, too few people and too few resources.
Mrs May’s track record both as Home Secretary and PM show she is not a great believer in peoples’ individual rights.
The timescales in getting something on, in what these days are fantastic – in the sense of unbelievable.
I can only hope that the Government will, in respect of those who have been over charged, reimburse the fees but that still leaves a probably sizeable amount of people who may simply have been put off by the fees. There may be people who entered into compromise agreements that just shouldn’t have because they hadn’t got the £1,000 to start proceedings. In the last year or so they may have also had difficulty finding somebody to give them advice as the number of employment lawyers shrinks dramatically.
So here is an idea. Generally, when your rights are interfered with people have to pay for it. So why should the Government get away scot-free here where somebody was put off taking Court action or entered into a compromise agreement that they otherwise wouldn’t have entered into. What is the measure of damage for not being given your rights?
I am sure that at the “doesn’t cost very much” end the Government will have some kind of scheme going to assist people with what has been taken away from them but it is at the other end in terms of people who have been significantly put off or who have had substantial claims stamped on effectively by the Government and employers advised by the law firms they can afford in the circumstances.
If Mr Francovich, an Italian whose pension rights weren’t properly instituted by the Italian Government could get compensation under what is a principle of EU Law then I would like to believe there is a way of starting a class action for all those who have been done down by the Government to recover what they should have got for the breach of constitutional duty on the part of the Government.
Looking at a list of Counsel in the Supreme Court I wonder what a combination of Blackstone’s best and Matrix’s finest could do on the question of hard cash for those who have suffered. I would love to have someone ask me the question.
Edward Mercer- Partner