By Donald Hirsch
This article was published first in the blog of the Centre for Research in Social Policy of the Loughborough University
The Supreme Court’s landmark judgement abolishing fees for employment tribunals has been rightly hailed for its championing of access to justice for workers, in the context of labour laws having tilted the scales increasingly against them in recent years. It also has much wider implications, including the linking in the judgement of powerlessness at work and low living standards. In this respect it has parallels with the living wage, which seeks to address the consequences of an imbalance of power between workers on low incomes and their employers.
The Court’s ruling made direct reference to our Minimum Income Standard (MIS) research, using it to consider whether people on modest incomes could afford the tribunal fees and still have a reasonable living standard. It used MIS to demonstrate that people whose incomes were above the low cut-off level making them eligible for assistance with the fees could still struggle to pay them. As a result, the court ruled that people in this situation were unjustifiably being forced to choose between a reasonable standard of living and access to justice.
In arguing against this position, the government through the Lord Chancellor did not challenge the concept of a reasonable living standard, but argued that such a standard could still be maintained while temporarily suspending some MIS purchases (such as clothing) that do not have to be bought every week. The court rejected this argument, pointing out that having to go for a period without buying clothes could deny people the ability to live in dignity if, for example, a child’s clothes needed replacing during this period. The court concluded more broadly that “sacrificing ordinary and reasonable expenditure for substantial periods of time” should not be a prerequisite for access to justice.
The court could also have pointed out that two of the categories that the government said you could temporarily forego – personal goods and services and social participation – largely concern aspects of everyday life, not just sporadic bills that can be postponed. To ask your daughter to forego her netball club or not to attend a birthday party because there is no money to pay the club fees or buy a birthday present (social participation) may be considered cruel. To stop brushing your teeth because there’s no budget to buy toothpaste (personal goods and services) may not exactly conform to government public health objectives.
The important thing here, though, is not the precise detail of these arguments, but the fact that they are being conducted at all in determining public policy. Both the court and the Lord Chancellor implicitly accepted the validity of MIS representing a reasonable living standard; the latter by suggesting how the standard could be maintained by temporarily suspending some of the expenditures in the MIS budget while maintaining others.
The terms of this debate contrast with some previous arguments about the very minimal levels of income that families need for basic subsistence, to avoid serious material hardship or destitution. In 2014, for example, the High Court ordered the Home Office to reconsider the level of asylum-seeker benefits, which it had not shown to be adequate for basic survival. In that case, the Home Office fought a rearguard action and justified maintaining benefits at exactly the same level by drawing on tenuous evidence that you could live on this level without starving. In contrast, the government has accepted the Supreme Court’s judgement about tribunal fees.
Perhaps the messages about just-about managing families and the need to have a decent concept of living standards are finally starting to permeate not just our political language but also our judicial and administrative decision-making.