Fighting with the wind : claimants' experiences and perceptions of the Employment Tribunal

Busby, Nicole and McDermont, Morag (2019) Fighting with the wind : claimants' experiences and perceptions of the Employment Tribunal. Industrial Law Journal. ISSN 0305-9332

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    Abstract

    The conceptualisation of access to justice in the Employment Tribunal (ET) as a public benefit essential for the realisation of the rule of law has recently been reaffirmed by the Supreme Court’s judgment in R v Lord Chancellor [2017] UKSC 51. However, reforms to the law and policy framework in recent years have been framed by Government as providing a necessary shift away from the use of full hearings due to the costs incurred by both the public and business. This article reports on the findings of research which tracked workers with ET claims who could not afford to pay for legal advice and representation. Their experiences and perceptions shed valuable light on the operation of the ET system. Many claimants were left dissatisfied, in particular those whose cases did not make it to full hearing. The data identify a range of barriers to justice, which impact on the ability of individuals to advance their claims and to enforce remedies. The article considers the use of ‘worker vulnerability’ in this context and the different interpretations applied by policy-makers. With reference to the research findings, we argue that vulnerability is universal and that, to counter it, the State has a central role to play in building individual and institutional resilience. We conclude by calling for the need to reclaim the concept of access to the civil justice system as a public good, capable of transcending private interests and providing fundamental protections against worker exploitation.