This week the Supreme Court issued the long awaited outcome of
the appeal pursued by Unison, who sought to argue that the Employment
Tribunal fee regime acted as a barrier to justice.
The Court allowed the appeal against the legality of the current fee regime,
and held that the Employment
Tribunals and the Employment Appeal Tribunals Fees Order 2013 is
unlawful and will be quashed with immediate effect.
The fee regime, which required those pursuing Employment Tribunal claims to
pay a fee at the time a claim was issued, and also a higher fee prior to the
final hearing, led to a 70% drop in claims issued in the Tribunal.
What does this
mean for my business?
Tribunals are no longer accepting fee payments where claims are issued in
person, and it is likely that the online claim system will shortly be updated
to remove the need to pay a fee also.
In light of this, employers should prepare themselves for an increase in
claims issued in the Employment Tribunal where claims have not yet
reached their limitation dates. It is anticipated that an increase in unfair
dismissal claims is most likely as the fee regime will no longer act as a
deterrent to former employees.
What can I do to
reduce the risk to my business?
We recommend that employers take the opportunity to review their current
policies and contracts in order to ensure that you have a strong foundation
for defending claims.
Additionally, employers may wish to reconsider the more robust
and risky approach that has often been taken in relation to dismissals and
complaints since the overall reduction in claims.
We recommend that employers seek legal advice when contemplating action that
could result in an Employment Tribunal claim. It is likely that in most
circumstances there will be steps and measures that can be taken to enable
you to defend claims that may subsequently be issued.
What will happen
It is doubtful that a fee regime will be scrapped in its entirely, and it is
likely that the Government will seek to introduce an alternative, more
workable system. This may mean a lower fee being payable, or a more
accessible remission scheme being introduced for example.
What happens to
the fees that have been paid since 2013?
The Supreme Court has made it clear that all fees paid under the regime will
be refunded. This is likely to be an arduous task as in many circumstances
employers were ordered to reimburse employees for fees paid.
It is estimated that over £27 million pounds will need to be refunded.
employees who were deterred from bringing a claim due to the fee regime?
It may be that Tribunals allow employees to extend the usual 3 month
limitation period, on the basis that had the fee regime not been in place,
they would have issued a claim.
It remains to be seen what approach the Tribunal takes in relation to this
issue, which could see a wave of outdated claims being pursued.
Should you wish to discuss how the changes may affect your business directly
contact Christine Hart on 01204 527 777 or firstname.lastname@example.org