A Reflection on Case Study Two: Laura and the Effect of Fees
Laura’s decision not to take her case to tribunal would be a fairly familiar story even before the introduction of tribunal fees. A largescale survey conducted in the late 1990s found that 16% of workers with legal problems related to employment did nothing about them, higher than the corresponding percentages for justiciable problems relating to family, consumer or housing matters; the reasons for no action included that the workers thought nothing could be done about it, because they were scared, or owing to the cost, time and trouble involved (Genn, 1999: 43‒4). These difficulties remain and are exacerbated by other factors: workers who are not union members have limited practical access to legal advice and legal costs are prohibitive; the legal cards are often stacked against claimants; tribunals have a very limited role in assisting claimants who represent themselves, and those without representation are significantly disadvantaged; tribunal awards have always small and difficult to enforce. If those were not sufficient obstacles already, fees add another barrier. In theory dismissals for conduct outside working hours, such as Laura’s, give rise to interesting questions about how the law on unfair dismissal applies to conduct outside working time, including in light of Article 8 of the European Convention on Human Rights. The reality for a worker in her position is rather more mundane. An employment tribunal would not investigate whether she actually committed the act of misconduct for the purpose of unfair dismissal, and would simply direct itself to consider whether the decision to dismiss was one which a reasonable employer might take based on the evidence before it.
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