The Liberal Democrats are trying to distance themselves from the disastrous record of their coalition with the Tories after 2010. But the party is still dominated by politicians deeply implicated in that record — as the story of tribunal fees demonstrates.
During the coalition years, four of Swinson’s MPs — including three who form part of her “leadership” team — helped push through a policy to slash workers’ rights that was so illiberal, judges found it to be unlawful.
Swinson herself, Vince Cable, Ed Davey and Norman Lamb helped impose fees for workers to take their unfair dismissal claims to employment tribunals. Bizarrely, Swinson now claims to have fought the scheme “tooth and nail”, despite all the evidence of staunch Lib Dem backing for it.
A close look at the record speaks volumes about Swinson’s party, and what we can expect from them in the future.
Workers who’ve been unfairly sacked can take their cases to employment tribunals, which have the power to award them compensation. In 2013, the Lib Dem–Tory coalition decided to put a price on justice, charging workers up to £1,200 to bring cases before these tribunals.
Everything was wrong with the scheme. It blocked access to justice, hitting low-paid workers most of all, because they could least afford to pay the fees — which could be higher than the compensation they eventually received. It also discriminated against women and minorities, as workers bringing cases for discrimination had to pay the highest fees.
In 2017, the Supreme Court found that the fees scheme “prevents access to justice and is therefore unlawful.” The ruling came in response to a long-running case brought by the trade union Unison, which argued that the number of people going to tribunals had dropped by four-fifths because low-paid workers were being priced out of justice.
The judges agreed. The government had to cancel the fees scheme initiated by the Lib Dems, and agreed to pay back the £32m that had been wrongly charged to the greatly reduced number of workers who had gone ahead with their cases anyway.
Long and Hard
The policy started with Vince Cable, Business Secretary in the coalition, who is now Jo Swinson’s pompously titled “Shadow Minister for the Cabinet Office”. (It’s only the official opposition party, Labour, that really has shadow ministers.) As a government minister, Cable launched a “consultation” on Employment Tribunals, with the imposition of fees as his predetermined goal.
According to Cable, these consultations would explore the idea of “introducing fees for anyone wishing to take a claim to an employment tribunal . . . it is reasonable there should be a cost to starting a tribunal case”. He wanted the fees to make sacked workers “think long and hard about the validity of the claim”: In other words, the whole point was to price workers out of justice.
Cable was particularly keen to discourage people from bringing discrimination claims:
“Introducing different fees for different kinds of claim will encourage potential claimants to fully consider their cases — leading to more realistic expectations for individuals and greater certainties for employers.”
Cable said this in a 2011 speech to a British employers’ association, bizarrely claiming that he wanted to “speak truth to power”, just as he was taking rights away from the least powerful in British society.
Cable set the ball rolling, but it was his party colleague Ed Davey — then a junior minister, now Lib Dem deputy leader — who issued the document “Resolving Workplace Disputes”, co-signed with the Tory Justice Minister Jonathan Djanogly. According to Davey’s paper, tribunal fees could “play a central role in our strategy to modernise and streamline the employment dispute resolution system”.
According to Davey, it was government policy that “services provided by the state and used by a particular segment of the population should attract a fee to cover the cost” — an approach that “helps allocate use of goods or services in a rational way because it prevents waste”. Most importantly, “a price mechanism [for tribunals] could help to incentivise earlier settlements, and to disincentivise unreasonable behaviour, like pursuing weak or vexatious claims.”
So the explicit goal of tribunal fees was to put off claimants, who were depicted as being unreasonable and vexatious. There can be no excuses for this outcome, which was the one sought after by the Lib Dems from the very start.
After the consultation initiated by Cable and Davey, the coalition government went ahead with their plan. The Lib Dem employment ministers Jo Swinson and Norman Lamb praised the new tribunal fees in parliament and helped bed them in.
Lamb claimed that fees would not be “a barrier to justice” for “those with a genuine claim”. However, “their introduction will encourage claimants to consider their cases carefully, leading to more realistic expectations for individuals and greater certainty for employers.”
In 2013, Swinson told the House of Commons why she approved of the new charges:
“Fees will help claimants consider whether alternative forms of dispute resolution, such as the free conciliation service provided by ACAS, would be more appropriate for resolving their workplace disputes. Also, from April 2014, prospective claimants will need to contact ACAS and consider early conciliation before they are able to proceed to an employment tribunal. Both measures should help to discourage individuals from bringing unfounded claims.”
Swinson also rejected warnings from the Labour Party that the new fees would affect women who were victims of sex discrimination at work: “It is not the case that most women who want to take up a case of maternity discrimination will be forced to pay such a fee.” According to Swinson, the “vast majority” of sex-discrimination claims could be “dealt with well outside the tribunal system”.
The judges of the Supreme Court disagreed, overturning the fees in part because they did discriminate against women and minorities.
Confronted with her record on tribunal fees by a journalist in July of this year, Swinson claimed that she had fought “tooth and nail” against the fees behind the scenes. With not one, not two, but four Lib Dem MPs directly responsible for pushing the scheme, this claim tests the limits of credulity.
Swinson’s track record suggests she will back illiberal policies in return for a stint in office, and later deny well-established facts in order to shrug off responsibility for her actions. No progressive voter should waste their ballot on such a cynical party.