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Be careful what you wish for, you might just get it. It’s an ages-old warning, but seemingly one that the CBI and other employer lobby groups failed to heed when pressing the Coalition government to introduce fees for employment tribunal (ET) claimants.
From the summer of 2010 right through to December 2011, when the Ministry of Justice finally launched its consultation on charging fees in the ET system, employer groups such as the CBI and British Chambers of Commerce maintained a constant barrage of demands for the introduction of substantial fees for claimants.
In January 2011, for example, the BCC published a report calling on the Government to introduce ‘a fee for claimants to discourage spurious and baseless claims’. In April 2011, in its submission to the government’s Resolving Workplace Disputes consultation, the CBI called for claimant fees to ‘ensure that only reasonable claims are brought’. And, in an endless series of articles and comment pieces in papers such as the Times, Telegraph and Mail, employers and HR directors suggested that claimant fees of £250 or even £500 would be ‘appropriate’.
Given all this background noise and encouragement, one might have expected the employer lobby groups to be rather pleased with the proposals dished up by the Ministry of Justice in December 2011. From where I’m sitting, the employers appeared to have got all that they had asked for – and quite possibly more than they had asked for.
But no – they’re not happy. Not happy at all. In its response to the consultation, the CBI warns that the Ministry’s proposals ‘risk undermining a more effective tribunal system’, and calls on the government to ‘revisit the proposals as a priority’. Seemingly having lost its previous enthusiasm for substantial claimant fees, the CBI goes on: ‘The government needs to find a new balance of fees and remissions to create the improved tribunal system businesses are seeking. If a lower overall fee means everyone at least pays something, then businesses would support this… [even if] it is just a token fee for those with very few resources.’
And, in a direct challenge to ministers’ stated aim of transferring some of the cost burden from the taxpayer to the users of the ET system, the CBI growls that ‘the primary policy objective must be “what will improve the integrity of the system”, not revenue raising’. Indeed. I couldn’t have put it better myself.
So, why the dramatic change of heart? Could it be that the CBI policy wonks have realised that, because the great majority of ET claims are settled, the introduction of substantial claimant fees could increase the overall cost to employers, as fees will be passed on as part of any settlement. In short, the ‘price’ of a settlement would rise to reflect the fees paid by the claimant.
This should perhaps have been obvious to the employer lobby groups from the outset. But perhaps their enthusiasm for worker-bashing got the better of their judgement.