UK Supreme Court decision quashes Employment Tribunal fees – a good time to dust down your HR policies and procedures
Post Author:
Angie Harvey
Date Posted:
September 25, 2017
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The last six weeks or so has been a busy news period between Brexit, on the one hand, Hurricane Irma on the other and the usual headline grabbers of record-breaking transfer fees and footballers’ off the field antics.
With all that going on, then, you would be forgiven for having missed the news which came from the UK Supreme Court at the end of July that Employment Tribunal fees, introduced under the Coalition Government back in 2013, had been quashed as unlawful ab initio (from the beginning) by the Court. The case was the final judicial consideration of R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51.
So what?
Although the decision was only published on 26 July, employment tribunals around the country and the government-backed Advisory, Conciliation and Arbitration Service (ACAS) are already reporting significant increase in activity and a more bullish approach to negotiation by claimants. As such, in the midst of continuing certainty around trading as a result of Brexit and the recently passed so-called ‘Great Repeal Bill’, employers need to gear up to an increase in workplace disputes, some of which will inevitably lead to employment tribunal claims.
It’s not just that though. Although on first glance, you might think that the Court’s decision means that, going forward, employees who feel they have been hard done by in their employment will be able to make a claim against their employer without having to fork out tribunal fees, it’s becoming clear that the decision could have other implications for employers who may not have been quite so careful to follow their HR processes in the last few years.
Other implications
The biggest problem with the decision from a practical perspective is that the fees have been in place for four years. Because the Court has determined that the fees were unlawful from the start, ‘wannabe’ claimants who feel – and can demonstrate – that they were prohibited from taking their claim to tribunal because of the high costs involved (£1,200 in total in many if not most cases) may now be able to make their claims ‘out of time’ on the grounds that it was not ‘reasonably practicable’ to do so before because of the imposition of the now unlawful fees. This means that that difficult situation a couple of years ago where ACAS contacted the employer to discuss settlement of a claim and the employer advised that they were not interested in doing so, may come back to life with an otherwise out of time tribunal claim. Apart from the obvious evidential difficulties involved in defending such a claim (staff moving on, files being destroyed, etc), there are also time and cost implications involved in trying to deal with such claims so long after the situation giving rise to the claim occurred.
There are a couple of other points to be aware of:
- Claims that have previously been dismissed for failing to pay tribunal fees will be capable of being resurrected, although administrative arrangements around this are still to be announced
- Those who have paid tribunal fees in the past four years will be entitled to reimbursement of those fees, although again the administrative arrangements around this are still to be announced. This also has implications for employers who have either been ordered to pay the tribunal fees or have paid them as part of a negotiated settlement
It’s clear that the decision caught everyone a bit by surprise – the Government and Her Majesty’s Courts and Tribunals Service (HMCTS) have made initial announcements in the midst of the confusion but clearly need to take some decisive steps to create greater certainty for all concerned. In the meantime, there are some things you can start to do as a business to ensure that you know the extent of any exposure/financial risk in light of the decision.
What should you do?
We recommend that you-
- Take stock – identify what workplace disputes have arisen in the last four years which could have given rise to a claim. This may be difficult as employers are keen to destroy records after a certain period in order to comply with their Data Protection obligations. Talking to your managers is a good starting point in this situation;
- Check your HR processes are in place and are being followed by your management team – make sure all new starts are receiving contracts of employment and generally that you have HR support for compliance matters such as holiday pay, working time, minimum wage and the like;
- Make sure you know what issues are arising in your workplace – this is not about micro management, but just about managing risk.
If you have any queries about the above, please don’t hesitate to contact us.
The foregoing is not legal advice and should not be read as such. If you consider that you require legal advice as a result of what you have read, please let us know and we will put you in touch with an appropriate specialist.
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