Workers across the UK will be delighted with this week’s Supreme Court decision that employment tribunal fees are unlawful, leading to their immediate repeal and pressure on the government to commit to repaying the £32 million it has charged claimants over the last four years as quickly as possible.
The ruling came as the result of Unison’s dedication to its judicial review challenging the legality of fees, which it launched immediately after the charges were introduced in 2013.
While the Court’s unanimous decision reverses the damage done to access to justice by the Coalition Government’s policy, it also shines a light on further action that could be taken to improve upon the enforcement of employment law in the future.
Great swathes of employment law is policed by workers themselves. This requires workers to have an understanding of the law and when it is being broken, as well as access to the resources and legal assistance they need to pursue a claim. In the likely case that individual workers don’t follow-up on every breach, employers can get away with breaking the law.
In our Manifesto for Labour Law – 25 recommendations for reform that acted as a blueprint for the Labour Party’s General Election Manifesto this year – we argue that the onus should not be on individual workers to enforce their own rights.
Rather, an independent Labour Inspectorate should be established to ensure that employers stay within the law; employers should demonstrate they stay within the law; and organisations should be encouraged to work with trade unions to agree the terms of employment, including dispute resolution procedures that can be conducted in-house.
An Independent Labour Inspectorate
A properly-resourced Labour Inspectorate is required by International Labour Organization conventions. The role of the Inspectorate should be both to ensure that labour law is implemented and to take action where it is not, including by bringing legal proceedings on behalf of workers, issuing cease and desist notices where the law is being breached, and imposing criminal sanctions on serious offenders.
We also argue that there should be a positive duty on employers to demonstrate that they stay within the law. This could include the publication of audits and reports on such things as pay levels.
As many businesses are becoming increasingly fragmented in their supply chain, we propose that it should also be the duty of an employer to ensure their contractors comply with labour standards.
One of the key proposals we make in the Manifesto for Labour Law is the reinstatement of Sectoral Collective Bargaining, which would see employers’ associations and trade unions negotiate at industry level for minimum standards in pay and conditions across that industry. These minimums could then be built upon at enterprise level.
As part of these negotiations, employers and trade unions could agree inhouse dispute resolution procedures which would allow breaches of law to be corrected without the necessity of going through the court system.
That is not to say that we do not support the continued availability of a Labour Court system – in fact, we propose that this system is made stronger.
We recommend tribunals are free at the point of use and involve representatives of both employers and unions on the panel, thus providing industry context to the disputes that are heard. We also believe these courts should be granted increased powers of investigation and they should be able to impose harsher penalties, including criminal sanctions where appropriate.
For instance, we propose that the cap on unfair dismissal compensation, which the Tories set at one year’s salary in 2013, should be repealed. Instead, employers who unfairly dismiss their workers should pay all earnings lost as a result.
ACAS and legal advice
At the moment, there is a mandatory requirement on workers to take their claims through an ACAS early conciliation process before tribunal. We argue this should no longer be compulsory, as some employers take this opportunity to put pressure on their workers to settle for less than they are entitled to. However, workers should have access to ACAS as well as to free legal advice.