July 28, 2017
The Supreme Court has this week changed the landscape of employment law following their decision that making claimants pay fees to pursue employment law claims was unlawful.
In 2013, the then Government introduced the payment of fees for those making claims to the Employment Tribunal. These fees were intended to discourage people making weak nuisance claims against their (former) employer and to pass some of the financial burden of the Employment Tribunal system from the taxpayer to those making claims. The fees ranged, depending on the type of claim, from £390 for a claim for unpaid wages up to £1,200 for unfair dismissal or discrimination claims. The result of bringing in these fees was a 79% reduction in the number of claims made to the Employment Tribunal.
After a number of legal challenges against the fees, all of which had previously been rejected, the Supreme Court found that the fees prevented access to justice and were discriminatory.
What impact will this have?
The immediate impact on individuals looking to pursue a claim is that fees are now not payable. Those individuals who have paid fees previously to bring claims, will be refunded. It is estimated that the total amount to be refunded will be in excess of £30 million. For those employers who had successful claims made against them and had to pay Tribunal fees as part of the compensation awarded, they too should be entitled to a refund of that element of the compensation award.
More complicated is the position of individuals who decided not to make a claim having been put off by having to pay fees. They will now be out of time to pursue their claim and it remains to be seen whether if they were to make a claim now, despite being out of time, and argue that the time limit for making a claim should be extended as they were prevented from pursuing a claim at the time due to the unlawful fees, they would be allowed to pursue their claim.
In the longer term, the Government are likely to seek to introduce a new fee regime although this will require consultation and so is unlikely to be in place for some considerable time, if it even receives approval from parliament.
So what should I do?
If you are an individual looking to make a claim, then even without the fees being payable to the Employment Tribunal, you should still ensure that you are not pursuing a weak claim as, although only payable in limited circumstances, the Tribunal can order a party to pay the other sides costs. Employers and their representatives are more likely to be making requests for costs in such cases to deter individuals making weak claims. It is important therefore to take advice on the merits of your claim and seek representation to ensure you are not pursuing a claim that has no prospects of succeeding, and that you are not pursuing a claim in a way that causes increased cost to your (former) employer.
If you are a manager or business owner, it is now more important than ever to ensure that your employment related documents are up to date, that those responsible for handling disciplinary and grievance hearings are correctly trained, and that any employment issues are dealt with promptly. With no fees payable, there is likely to be a significant increase in the number of claims being made in the future.
If you have any employment law issues please call the employment team at Spencers on 01246 266680 to discuss how we can assist.