Tribunal fees have been abolished following a recent unanimous judgement from the Supreme Court in a case brought by Unison. The court found that the fees prevented access to justice and in addition, disproportionately affected women.
Since July 2013, claimants in employment tribunals have had to pay a fee of up to £250.00 to submit a claim and a higher fee if the claim was taken forward to a final hearing.
Since the introduction of fees, tribunal cases reduced dramatically by 70 per cent. ACAS have also reported that 10% of individuals who contacted them regarding a potential claim ultimately decided against doing so because they couldn’t afford the fees.
The reason for the introduction of fees was to discourage weak and vexatious claims. The success rate of claims since the introduction of fees interestingly though has fallen which contradicts this logic and makes you wonder if weak claims were in fact effectively deterred by the fees or if the fees ultimately didn’t matter and if the claimant had the cash to pursue their claim they would do so – irrespective of merit.
Unison said the fees presented a significant bar to access for justice for individuals who considered they had been wronged by their employer. The Supreme court agreed, stating access to justice is a constitutional right and the fee system interfered with that right.
The Supreme Court rejected the government’s defence that many claims at tribunal were inherently ill founded and that the employment tribunal system was a private service which should not be underwritten by the tax payer on the basis that there was little evidence to suggest the fee system had deterred weak cases and that pursuing a claim in the tribunal was not purely a private activity, because it can and does benefit society more widely.
The government has accepted the decision, has immediately stopped taking fees, and is undergoing the process of reimbursing all fees paid since July 2013.
However, there is always the chance that although the current system has been ruled unlawful, that the government attempts in the future to try to introduce a revised system with much lower fees.
As well as this, anyone can search the tribunal online database of employment tribunal judgments. So, while it is thought that the abolition of fees may see a sharp increase in tribunals in the short term, some employees may be put off by the thought that if anyone wants to see a judgment they can do so by searching for the names of parties involved, particularly as awareness of the database continues to increase.
In order to avoid claims, encourage your employees to speak up early and informally. The earlier a grievance is aired the easier it is to resolve it. If you don’t have harassment or grievance policies introduce them now. If your managers are uncomfortable having conversations about their team’s conduct, train them now. Work towards creating an open culture where people can speak up without fear of reprisal. Take this time now to invest in your people contracts of employment, policies and processes to deliver positive results for your business.