The government recently faced a policy U-turn after the Supreme Court ruled that employment tribunal fees were ‘inconsistent with access to justice’, and therefore unlawful. The decision has financial as well as legal implications, with potentially up to £32million of repayments to be made to workers intent on getting justice.
The challenge to the charges for bringing an employment tribunal – £1,200 in many cases – was brought by the trade union, Unison. Their argument was that the fee prevented workers, especially those on lower incomes, from getting justice in cases of unfair dismissal during the last four years. The government introduced the charge in 2013, in an attempt to cut the number of ‘malicious and weak cases’. However, the government’s own statistics showed a marked drop-off in the number of tribunals brought of around 73%, a much higher percentage than could have been reasonably expected.
Unison claimed that, while malicious or weak cases may well have been reduced, so too had the number of justifiable claims because lower-paid workers were simply unable to afford the fee.
Recouping the fees
The government has said that it will reimburse all fees if it is found that any claims had been unlawfully charged for bringing a case. The Treasury has put aside up to £27million, but the figure could easily climb above that.
Tribunal fees ranged from £390 to £1,200, with discrimination cases costing more due to their complexity. The Supreme Court found this to be discriminatory in itself, as it is mostly lower-paid women workers that brought discrimination cases.
What next?
The ruling means that workers deterred by bringing a case based purely on cost can now proceed, knowing that justice is not going to hit them in the pocket. Citizens Advice reported that they helped nearly 350,000 people with employment issues in 2016 alone and, following the ruling, that figure may increase further in 2017.
Our advice is that if you are a claimant then you should contact your representative (either a union mediator or solicitor) to ensure that you recoup your fees as quickly as possible. If, however, you are a business then the likely ramifications of this landmark decision are that employees are going to be much more likely to bring claims for any perceived breaches of employment law. Therefore, now is the time to make sure that you have your ‘house in order’ with well drafted contracts and staff handbooks and that you are applying recent changes to the law, such as the changes to holiday payments. If you would like to talk any of this through then please get in touch.
