When Employment Tribunals (then “Industrial Tribunals”) were set up, access to them was free. If you wanted to bring a claim, you sent in a form, the tribunal heard the case, and in due course it told you whether you had won or lost, and if successful, how much your employer would have to pay you. If you represented yourself, the whole process didn’t need to cost you, however, over time using paid advocacy became far more the norm and this in turn has potentially has increased the cost of making claims.
The most significant change to the Tribunal system came in July 2013 when to bring a tribunal claim you had to pay two fees: one for starting the claim, and a second larger fee for the hearing. Since then Unison have been fighting the system through the courts, unsuccessfully until it went to the Supreme Court which held unanimously that the Fees Order (which led to a 70% reduction in claims) is unlawful and unconstitutional, so will be quashed.
The Supreme Court noted a contrast between the level of fees in the tribunal, and the small claims court (where it is very much cheaper to bring a claim for a small sum of money). Lord Reed emphasised the importance of the rule of law, and that specific statutory rights granted by Parliament may not be reduced by statutory instrument from a minister. The fees effectively prevent access to justice for many people. It was also relevant that the Order had made a much less significant contribution to tribunal costs than expected, had failed to deter unmeritorious claims and did not appear to have resulted in more ACAS settlements.
Peter Stanway, our BackupHR™ legal expert comments:
The judgment is likely to have both significant short-term and long-term effects. Initially the Employment Tribunals Service will need to do an immediate rewriting of the tribunal rules, and a reprogramming of the online Claim Form system because the Supreme Court made it clear that all fees paid between 2013 and the ruling will have to be refunded by the Lord Chancellor’s Department. This will be difficult as many successful claimants will have had fees ordered to be paid by the Respondent, so there will probably need to be a manual review of all decided cases.
Those people who chose not to bring a claim because of the fee may seek to make a late claim. Tribunals may be amenable to the argument that it was not reasonably practicable to bring a claim, when a Claimant was significantly impeded from doing so by unlawful fees, so it is just and equitable to extend time for bringing a claim.
The Government will have to decide if it is going to abolish the fees regime entirely. Since the Supreme Court primarily criticised the level and structure of fees, rather than the principle – the Government may be tempted to explore a more nuanced system of shifting the cost of the Tribunal system onto litigants and possibly employers. It is probable that they will issue a consultation paper with options for change, but may be reluctant to legislate with such a thin majority.
In the short term there is likely to be a big increase in claims.
Actions
- If you are worried about a claim arising from recent action you have taken, or some other dispute, get professional advice.
- In future you should be more cautious, which primarily means properly following your procedures and good practice.
- Be careful about actions which may appear arbitrary, capricious or discriminatory.
- If you are thinking of making a claim or advising a friend/relative – do think carefully about whether bringing a claim is the best thing to do. Just because it is now possible to bring a claim without paying a fee, doesn’t mean there are no costs. The emotional costs of bringing a claim are usually high. Many people find it a very distressing and futile experience.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
