Supreme Court ruling puts Employment Tribunals back on the agenda

Louise Connacher, a director in the employment law department at Lupton Fawcett. (S)
Louise Connacher, a director in the employment law department at Lupton Fawcett. (S)

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Fees to bring Employment Tribunal claims are now a thing of the past! The Supreme Court has ruled that the imposition of fees to bring employment claims is unconstitutional and discriminatory.

In 2013 the Ministry of Justice introduced fees into the employment tribunal, previously a free service. Dismissed employees had to find up to £1,200 to have their claim heard. This resulted in a 79 per cent drop in claims and the start of long campaign by UNISON to challenge what they saw as an attack on basic employment rights.

The Supreme Court held that the fees prevent access to justice. Lady Hale pointed out that the higher fees for complex claims (discrimination) put women at a particular disadvantage compared to men.

Fees were introduced by the Government to weed out what they saw as malicious and unmeritorious cases. UNISON argued that the fee regime didn’t just weed out weak cases, they stopped genuine cases as well. The Supreme Court agreed. It said that the reduction in claims after the fees were introduced was “so sharp, so substantial and so sustained” that they could not be afforded by workers on low to middle incomes or those seeking a modest or non-monetary remedy.

The Court didn’t agree that the introduction of fees had the effect of encouraging settlement. On the contrary, it concluded that it had deterred early settlement as employers were waiting to see if the employee actually issued proceedings. The Court recognised that many employers are small businesses and that not every case is a David v Goliath situation but this did not justify the imposition of what they described as a crippling level of fees.

The ruling means that those that have paid fees over the last four years will be able to claim them back from the Government which it has been reported will cost an estimated £32m. Of more concern to employers is the fact that those individuals who did not lodge claims over the last four years due to being financially unable to do so, may seek to issue claims now arguing that it was not reasonably practicable for them to have done so earlier, in view of the fees regime. Whether Tribunals will allow such “out of time” claims remains to be seen.

Now the barrier to issuing proceedings has been removed, it is anticipated that claims will start to rise again. Employers will need to bear this in mind when making business decisions and dust off any files relating to employees who had alluded to bringing a claim over the last four years and didn’t. They may come back to haunt you!

For further help or information please contact Lupton Fawcett’s Director in Employment Law, Louise Connacher, on 0113 280 2108 or louise.connacher@luptonfawcett.law