Public consultations

Public Consultations

FRU is often asked to comment on changes in law or regulation.  We regard it as part of our job to respond to consultation documents when we have a view or relevant experience.  A selection of recent responses is set out below.  

FRU says ET fees would restrict access to justice

We have made a submission to the government consultation on introducing fees in the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT). We oppose the introduction of the fees for a number of reasons including:

• We disagree that a fee of £55 is a modest amount for many of our clients. For those on a low income or Universal Credit £55 can represent an unaffordable barrier to being able to assert their legal rights.
• £55 is also a high sum for claims that don't have a high monetary value but which are still important, such as a declaration that a worker is entitled to receive a summary of their main terms and conditions. It is usually not possible for the applicant to claim back the costs of making the claim even when the claim is successful.
• In many cases where the tribunal judges that the applicant has not received their legal rights, the sum awarded as compensation is not paid and not enforceable. Introducing a new barrier to access to justice just entrenches impunity for unscrupulous employers. It penalises employers who do operate fairly and undercuts fair competition.
• The introduction of fees will impose additional administrative burdens on a tribunal system that is already in crisis. Delays of over a year for hearings of ‘fast-track’ and ‘short-track’ claims (i.e. simple wages and dismissal claims mostly of between 1-2 days) are not uncommon in the ETs we mostly operate in. Calls and emails to the ET regularly go unanswered, and hearings are often cancelled or postponed at short notice. It is now the norm that interlocutory applications made within 2-3 months of the final hearing will only be dealt with at the final hearing.
• There are practical issues with the Help with Fees (HwF) remission scheme so that it will not mitigate the problems we identify above. There is low knowledge of the scheme, it is bureaucratic and requires evidence which can be hard to collate and it will lead to satellite litigation about whether deadlines for claims have been met. Ultimately, FRU accepts that an expanded, accessible, robust HwF scheme which is better advertised to ET claimants would cater to most of the objections it has raised about the affordability of the fees. However, we doubt that this is feasible given the severe resource constraints currently imposed on the ET.
• It is not fair or proportionate to only charge fees to applications to the ET and EAT, employers should expect to pay a fee too if they are introduced. In our experience it is the behaviour of employers that often creates the need for a worker to apply to the tribunal.

We argue that these measures might leave the government open to further legal action. For example the probable additional delays which might arise from the increased administrative burden on the ET caused by fees may open the Lord Chancellor to HRA damages claims under the civil limb of Article 6 ECHR where workers are unable to access a tribunal within “a reasonable time”. Also as regards claims raising issues of human trafficking and/or labour exploitation, failures to introduce relevant fee exemptions may leave the Lord Chancellor open to challenges based on the UK’s procedural obligations under Article 4 ECHR and Article 15 of the Trafficking Convention.

Our submission also includes case studies of FRU clients who have experience of making ET and EAT claims. For example:

• Anna who has not received any of the £20,000 she was awarded by the ET.
• Farhanah who it is likely that she will not receive any of the £70,000 unpaid wages and holiday pay that she is owed.
• Apsana who would not have been able to afford the £55.00 issue fee.
• Hamza who said "I wouldn’t have paid £55 to appeal my tribunal case to the EAT. That fee would have been prohibitive for me because I was unwell at the time, I had caring responsibilities for my parents, and I had no money coming it other than Universal Credit. I was very disappointed and disillusioned with how the tribunal had handled my case, and I was ready to give up. The £55 fee would have put me off making an appeal.”

In summary FRU’s view is that the £55 ET claim and EAT appeal issue fees represent the worst of all possible worlds. They will not meaningfully contribute to the costs of running the
ET or EAT, either on the (limited) financial modelling the MoJ has done or considering the foreseeable additional costs of administering the fee regime and HwF remission scheme within the ET, not to mention the potential satellite litigation that fees are likely to generate. The fees themselves will disproportionately impact those currently least able to access employment justice, likely entrenching poor working conditions for the low-paid and for migrant workers. A decent labour market and a respectful workplace culture free from prejudice and discrimination are universal public goods which benefit us all. At present, those public goods are secured at modest cost to the Treasury by a freely-accessible ET system: something which should rightly be a source of considerable pride for the UK. The normative case for shifting the cost of that system, in whole or in part, to workers alone is, from FRU’s perspective, a weak one at best.

Read the consultation response here.

FRU contributed to two other responses to the consultation, one by the Employment Lawyers Association (ELA) and the other by the Employment Legal Advice Network (ELAN), we also signed a joint statement opposing the introduction of fees organised by the Trades Union Congress.

FRU cautions against move to single judge ET hearings

The Free Representation Unit has cautioned against a move to restrict the use of lay panel members in Employment Tribunals. The Senior President of Tribunals, Sir Keith Lindblom, consulted on how to exercise new powers to determine how many members each tribunal should be composed of.

The consultation paper stressed that having more members lengthened proceedings and made them more expensive and harder to list. In the context of severe delays in employment tribunal claims being heard FRU agrees that it is crucial to minimise delay. However, we believe that in many cases the contribution of non-legal panel members remains important, and necessary. The increased legalisation of Employment Tribunals leads the need for a better understanding of the realities of the workplace and in our view this is provided through the judicial insight of the panel members.

FRU Chief Executive David Abbott said "At FRU we mainly focus on helping individual clients, but it is also important to take every opportunity to feed the experience of our clients into policy making. The issue of who sits on employment tribunal panels is an important one for the interests of justice. We understand the need for the tribunals to be efficient, but it is even more important for the right experience to be brought to bear in making decisions. We believe that it is important to retain the experience of non-legal tribunal members where it is needed to make the best decisions".

• Link to the consultation
• FRU's response to the consultation

Important Select Committee report draws on FRU evidence

The Justice Select Committee has published a hard hitting inquiry report on HMCTS reform of the court and tribunal system. The report, which can be found at this link https://publications.parliament.uk/pa/cm201920/cmselect/cmjust/190/190.p... draws on evidence from FRU’s written submission.  In particular the report quotes our evidence on court closures and the importance of face to face hearings for our sick and disabled clients, the impact of legal aid cuts on access to justice and the availability of support for users, and the effectiveness of HMCTS communication about its reforms.

The report called on the Ministry of Justice to evaluate the impact of court reform against the legal standard of access to justice summarised in the Legal Education Foundation’s “Digital Justice” report which FRU also contributed to. That report can be found at this link https://research.thelegaleducationfoundation.org/wp-content/uploads/2019...

FRU objects to the 2010 Green Paper's proposals for changes to civil legal aid. We responded in February 2011. Here is a copy of our submission to the Ministry of Justice. We are opposed to the removal of Legal Help from welfare benefits, criminal injuries compensation and many employment cases. The main points we make are these:-

• Early intervention saves cost for all
• The law and the legal process is too complex for most individuals who would be affected
• Legal aid in civil cases is an essential part of the rule of law in a civilised society
• The changes would hit the most vulnerable
• Legal help unlocks lawyers' pro bono activities
• Pro bono organisations cannot fill the gap
• Allowing Legal Help to continue in the discrimination aspects of employment cases but not other aspects will complicate cases, confuse clients, impede negotiated settlement and increase racial and other forms of prejudice
• Telephone help is no substitute for face to face contact.

Discrimination Law Review: The Government's wide ranging review of discrimination law, in preparation for the Single Equality Act was published in June 2007. Our response.

Cost recovery in pro bono cases: The Department for Constitutional Affairs, as it then was, issued a document ‘Cost recovery in pro bono assisted cases’ on which it sought views. Our response. 

Resolving disputes in the workplace:  On 21st March 2007, the Government published the outcome of an independent review of the employment dispute resolution system in Great Britain, led by Michael Gibbons. The website of the Department for Business, Enterprise and Regulatory Reform contains details.  The Government sought views. Our response A.  Our response B.

Bar Standards Board consultation on barristers’ entertaining.  The Bar asked for views on barristers’ entertaining. In June 2007, the Bar Standards Board produced guidance which deals with the concerns we expressed.  Our response.