Hugh Reilly: Sword of justice cuts wrong way

The scales have tipped in favour of employers. Picture: Getty
The scales have tipped in favour of employers. Picture: Getty
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The lowest-paid, most vulnerable employees in this country have been priced out of the tribunal system, writes Hugh Reilly

The iconic image of Lady Justice is quite simply spiffing. Armed with her sword of justice, she fights for the rights of the oppressed: the dangling scales signify she will assess the merits of a case before reaching a considered decision; blindfolded eyes demonstrate that she will act without fear or favour. She embodies what David Cameron would call British values of fair play.

Sadly, as a consequence of the coalition’s appalling decision nine months ago to price low-paid workers out of the industrial tribunal system by charging exorbitant fees, Lady Justice’s accessories have taken on a new, disturbing meaning. Like a bipolar Zorro suffering a manic episode, her sabre has slashed the number of cases being heard, cutting them down by more than two-thirds. Her scales of judgment are more lopsided than a celebrity boxing match weigh-in featuring Geoff Capes and Willie Carson. Worst of all, her blindfold represents not her black-and-white application of the law, more a desire to act out a chapter of Fifty Shades of Grey. Thanks to Cameron and Clegg, any new statue of Lady Justice should show her holding a credit card swiping machine and an honorary membership card of the Confederation of British Industry.

Previously free, it now costs an arm and a leg to take an employer to a tribunal. Challenging unfair dismissal, unequal pay, discrimination in the workplace or a sacking related to whistleblowing ker-chings at a cool £1,200. By way of comparison, the charge to fight being underpaid, denied redundancy pay or having one’s contract breached is competitively priced at just £390.

Should a malcontent serf refuse to touch his forelock and appeal the tribunal’s decision, this quasi-feudal legal process of settling industrial disputes sides with the lords of the manor – a tribute of £1,600 must be paid upfront by the vulnerable prole before any hearing takes place. Unsurprisingly, employers, indubitably all honourable men and women, cough up nothing, despite the objective fact that currently only around half of them pay in full the judgments they have lost.

The government has acknowledged that non-payment of employment tribunal awards is a problem and that the existing enforcement regime is a tad “unsatisfactory”. To put it succinctly, a vindicated worker could end up winning a case and being thousands of pounds out of pocket – dontcha feel proud to be part of a UK that values defenceless workers to this extent?

The heartlessness of the show-me-your-wedge justice system is exacerbated by the fact that the majority of cases involve the most defenceless wage-earners in the economy: women, ethnic minorities, the young and the disabled. Females who suffer sexual harassment now have to check their bank statements before deciding whether to take action against an office pervert. Rather than contest a dismissal, black and Asian youths given their jotters unjustly will probably meekly add to depressing dole figures that display unemployment to be twice as high for ethnic minorities than whites.

Loading still further the dice in favour of employers is reprehensible. The charges are a barrier to justice and a green light for unethical businesses to exploit the weak. I’ve been a helpless bystander as my son has been exploited by a company that Dickens would have deplored. Originally hired on a no-remuneration “work experience” basis, he has a much-not-sought-after zero hours contract whereby he doesn’t know if he’ll be working three hours or 30 hours next week for the minimum wage. He’s part of Britain’s flexible workforce, a one-way flexibility, it has to be said. In the event of him being capriciously fired, he’d have to gamble well-nigh two months’ earnings on a successful outcome at an employment tribunal.

When I was a supply teacher, I fought the findings of a Social Security adjudication officer at a tribunal. Back then, justice was free – what a bizarre concept! At the hearing, the supposedly independent chairman exhibited unbelievable bias, allowing the DSS official to constantly interrupt me when I was giving evidence but sternly rebuking me when I reacted in kind. I lost the case. I appealed immediately, again gratis, and won. If I’d had to stump up thousands of pounds to be heard, I would have reluctantly accepted the initial, flawed decision of the adjudication apparatchik.

In my view, the Law Society of Scotland is correct to call for a review of the situation. The UK government’s view that other remedies to workplace friction have overtaken the work of industrial tribunals is absurd. The number of cases dealt with by sheriff courts or mediation services has not increased. Logically, the dramatic decrease in cases brought forward, down 72 per cent in Dundee and 70 per cent in Glasgow, is down to the poorest in society being priced out of a fair hearing.

Fortunately, those employees who are trade union members can still rely on their organisation to stump up for legal assistance. It’s something of an irony that Conservative-led legislation is driving low-earners into the arms of organised labour. There are also groups, such as the Equality Advisory and Support Service, that will take up the cudgel on behalf of folk who have endured alleged discrimination. However, this patchwork quilt of available help doesn’t cover all eventualities.

Creating thousands of people disillusioned with what passes for justice undermines society. The British government claims that workers should make greater use of things such as an in-house “grievance procedure”. When I was a union rep at Glasgow’s biggest secondary school, it was an accepted fact that the council directorate invariably sided with school management. It would be fair to say that Hanging Judge Jeffreys boasted a greater respect for objective evidence; a persecuted teacher’s only hope of securing justice lay with an appeal to councillors on the local authority’s education committee – yes, that’s how bad it was.

Under the Cameron-Clegg anti-worker axis, the pendulum has swung much too much in the direction of private business. Ed Miliband must promise to restore basic access to workplace justice for employees to ensure Lady Justice maintains at least a semblance of integrity.