Since 2013, employees have had to pay a fee of up to £1,200 to take their employer to a tribunal. This led to a drop of around 70% in the number of claims, enabling some employers to take a robust approach to employee relations because of the heavily reduced risk of a claim.
The Supreme Court has now ruled these tribunal fees were unlawful, on the grounds that when parliament confers employment rights on individuals, the Lord Chancellor cannot effectively take them away by introducing prohibitively high fees. All fees paid by employees between 2013 and now will be refunded by the government.
Any person proposing to bring a claim will still have to go through ACAS preclaim conciliation which will enable you the employer to evaluate the merits of such a claim
Remember tribunals like documentary evidence so if you are in any situation which may conceivably result in acclaim make sure you keep notes as you go along. Above all do not take precipitate action without consulting
Where does that leave employers?
First, it is unlikely that fees will disappear entirely. We think the government will probably bring in a different fees regime, with lower fees and possibly with employers contributing to the cost at the outset. But we don’t know any details yet and given other issues preoccupying a minority government reintroduction of fees will be a low priority so we will have to get used to going to the no fee tribunal situation at least for some time.
Second, any employees who might have brought claims between 2013 and 2017, but who were put off by the fees, can now seek permission to bring them ‘out of time’. This will be easier with discrimination cases than unfair dismissal cases, but there will inevitably be a large number of such cases brought by ex-employees. It is far from clear how tribunals will deal with these ‘out of time’ claims so if you have any skeletons dust them and make sure you have coherent records.
Employees will obviously be less inhibited about bringing forward claims to a tribunal. Although claims did reduce by 70% with the introduction of fees I can’t honestly believe that employee relations suddenly improved by 70% if the tribunal threat was reduced. To avoid becoming bogged down in litigation, reputational damage and cost not to mention the call on management time in preparing for and appearing at a tribunal unless you the employer decides to settle, now is the time to review your employee relations policies and procedures make sure your grievance handling processes are up to date and that before commencing disciplinary proceedings you have conducted a thorough investigation and are confident that your action is appropriate. Wherever possible and practicable use informal dispute resolution and if necessary use mediators to stave off the stressful, expensive and time-consuming tribunal preparation and attendance.
The ACAS preclaim conciliation is a low hurdle for any claimant to climb over and wont in my opinion stop many claims from going forward.
If you receive such a claim, it will need specialist advice which we would be happy to help you with. If you need help with updating your processes and procedures again we can help You can reach me at www.ukemploymentlawadvice.co.uk or on 02036407748
Michael Newman