The Government has announced a consultation on reinstating fees for people to bring an Employment Tribunal (ET) claim.

A response from unions and campaigning groups, including the TUC and Citizens Advice, has argued that a £55 fee will “deter many from lodging worthy claims and gives a green light to bad employers to exploit their workers”. They point to a lack of awareness among employees of their rights, and to an under-resourced ET system that leads to delays and misery.

When fees were introduced in 2013 there was a 70% fall in the numbers of ET cases. Four years later, when fees were scrapped due to a legal challenge from Unison, there was a sudden jump (a doubling in some regions) and a struggle to cope with demand and to recruit enough Tribunal judges.

There is always the same question here: are employees being denied justice because of the cost, or does a fee deter people from raising less substantial cases? The difference now from the original Supreme Court decision on fees is that the Ministry of Justice has included a fee remission scheme for people unable to pay.

An ET should be a last resort

Whether there are fees or not, an ET should be the very last resort option for the individual and the employer. Too many ET cases happen because there just appears to be no other way forward. Employees stumble into an ET because of a lack of people management skills and sensible informal processes for talking within their organisation.

It would be much better for policy, and HR strategy in terms of employee relations and improving workplace cultures, to focus on promoting the use of mediation, for example. A way to avoid any claims about inequalities around access to legal representation; and to acknowledge the complexity of workplace conflict, the often sensitive, personal issues that need to be talked through.

There’s an opportunity here for HR to demonstrate best practice: they can build a positive working culture where people have enough belief and trust in their organisation that they’re willing to talk openly about problems, to admit failures and weaknesses.

It’s a mistake for organisations to see any kind of conflict, even at the level of minor disagreement, as unwelcome and a problem, something to be avoided or diverted into formal grievance processes. Awareness of informal mediation services, and access to mediation as the ‘normal’ way of dealing with minor conflict is essential.

An Alternative Approach

Another constructive way forward for teams which might have challenges around relationships is to make use of a Neutral Assessment: an informal process aimed at identifying and exploring the relationships of groups and situations of low Psychological Safety by understanding the perspectives of individuals involved. This provides an opportunity for employees to voice their concerns and feel heard as individuals, while also generating actionable solutions to tackle any problems.

A Psychological Safety Index (PSI) tool can be used to assess the current state of attitudes and relationships. Psychological Safety is measured on four dimensions:

• The attitude to risk and failure: how permissible it is to make mistakes?
• Open conversations: whether and how often difficult and sensitive topics can be discussed openly.
• Willingness to help: how likely are people to offer and ask for help.
• Inclusivity and diversity: the degree to which employees feel they can be ‘all of’ themselves.

The results can be collated and used as a framework for further personal development: with open discussion of behaviours that may have caused problems in the past and, critically, a recognition of how open conversations and taking measured risks can build trust, and go some way to building a culture of respect and understanding within the team.

Some managers have the inbuilt skills to manage conflict constructively. Others will need support to best deal with difficult conversations. Review your management programmes to ensure they include the soft skills involved in embracing positive conflict and defusing negative conflict; motivate and train employees to have difficult conversations with each other and with their manager.

For example, in how to challenge colleagues’ banter or perceived manager’s bullying, skills which can be expanded to include how they respond to difficult situations with the full range of stakeholders working with a a department.

The debate over ET fees can look beside the point, a distraction away from the real problem in workplaces: a lack of talking, listening and understanding.

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