When the UK Government proposed introducing fees for employment tribunals - in some cases up to £1,200 - there was considerable concern expressed by lawyers and trade unions that the reform could discourage employees with genuine grievances from going to tribunal.
It would be, said critics, a barrier to justice.
Now, nearly a year after the fees were introduced, figures obtained under Freedom of Information legislation have shown that the number of tribunals accepted has fallen from 7272 between August 2012 and March 2013 to 2296 in the same period the following year.
The precise details of each case are not known, but the drop in cases happened immediately after fees were introduced and the figures are entirely consistent with the aim of the UK Government in introducing the change. There were too many drawn-out disputes and vexatious cases, it said, and fees had to be introduced to flush out unmerited claims, encourage quicker alternatives such as mediation and reduce costs for businesses.
It is certainly true that the tribunal system needed reform and the Government was right to say the burden of tribunals can be heavy for small businesses. But the need for reform has to be balanced against the need to protect workers' rights; if an employee has been mistreated at work or has been dismissed unfairly, he or she should have the right to have a case heard at tribunal when the alternatives have failed.
It may be that in introducing fees the Government has succeeded in discouraging some unmerited cases, but the suspicion must be that some of the employees who have not gone ahead with their cases in the last year included some who had good grounds for a tribunal but could not afford the fees. This is what the Law Society of Scotland believes, although it should be remembered that those who cannot afford the fees can apply to have them reduced or waived.
The Law Society of Scotland now plans to take its concerns further and approach the UK Government to ask for a review of the fees, but it will also ask the Ministry of Justice what can be done to encourage more mediation. One of the laudable aims of the UK Government's reforms was to increase the use of mediation, and employees cannot now go straight to a tribunal without first trying negotiation.
This increased emphasis on mediation was the most positive part of the reforms, not least because mediation can save costs on both sides as well as avoiding the stress of an employment tribunal. But if the reforms were working as intended, we should have seen a rise in the number of cases being dealt with by mediation as well as a drop in the number of cases going to tribunal, and as yet there is no evidence of that.
To put this right, the UK Government must look carefully at what can be done to encourage more use of mediation. The introduction of fees will have saved the taxpayers many millions of pounds, but it should not come at the cost of the right of employees to be treated fairly at work and seek redress when they are not.
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