New ruling sees change in tribunal fees
20th September 2017
A government beset by policy U-turns has faced yet another one recently as the Supreme Court ruled that employment tribunal fees were 'inconsistent with access to justice', and therefore unlawful. Not only has this caused red faces at the Ministry, but it could cost the government's reserves too ??" potentially up to £32million in repayments to workers intent on getting justice.
The challenge to the charges for bringing an employment tribunal ??" £1,200 in many cases ??" was brought by trade union Unison. Their argument was that, for the last four years, the fee was preventing workers, especially those on lower incomes, from getting justice in cases of unfair dismissal. 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 of around 73% in the number of tribunals ??" a much higher percentage than could have been reasonably expected.
Unison claimed that this demonstrated that, while malicious or weak cases may well have been reduced, so too had the number of justifiable claims, based purely on the fact that lower-paid workers (those most often exploited in the workplace) were simply unable to afford the fee.
Unison General secretary Dave Prentis said that the government had been proven to be acting unlawfully by introducing the charges. "These unfair fees have let law-breaking bosses off the hook these past four years, and left badly treated staff with no choice but to put up or shut up," he said. "We'll never know how many people missed out because they couldn't afford the expense of fees."
Recouping the fees
The government has already said that it will reimburse all fees if it was found that any claims had been unlawfully charged for bringing a case. Currently, the Treasury has put aside up to £27million, but the figure could easily climb above that. And while this may be great news for claimants, it is not so good for taxpayers who will end up footing the bill.
Tribunal fees have ranged from £390 to £1,200, with discrimination cases costing more because of their complexity. This was found to be discriminatory in itself by the Supreme Court, as it was mostly lower-paid women workers (often only working part-time hours and therefore on much lower incomes) that brought discrimination cases.
The ruling also means that those who may have been put off the idea of bringing a case based purely on the cost can now proceed with a little more confidence, knowing that justice is not going to hit them in the pocket. With the Citizen's Advice Bureau saying that they had helped nearly 350,000 people with employment issues in 2016 alone, that could mean a sudden rash of new cases as workers feel more able (and more willing) to seek out justice.
For those owed money, it could be a bit of a waiting game, though. The government is not known for reacting quickly in cases like this, but with such a bright spotlight being shined on the situation not only by the media but by unions too, it is probable that reimbursement will be swifter than usual, as long as those eligible put in their claims quickly. This effectively could turn into the government's very own 'PPI' scandal, and legal experts are hoping that lessons have been learnt from that situation and will guide how the government responds.
Advice from legal experts is that claimants should contact their mediation or tribunal representative (whether that is a union mediator or solicitor) to ensure they recoup their fees as quickly as possible. Moreover, for those who may be thinking of bringing a case, the options for obtaining justice, particularly in discrimination cases, just got much cheaper.
What is the impact of this change is likely to be?
1. Possible increase in the number of cases being brought and the time existing and future cases take to reach conclusion.
2. The Tribunal process may slow down even further with more cases which leads more applications, more paperwork and in the end more hearings.
3. With more cases in the system to be dealt with this could lead to more last minute postponements of hearings due to lack of judicial time and resources.
4. Complex legal or factual cases are often postponed and a judgment given at a later stage once the Tribunal has considered the points in more detail (a Reserved Judgment). An increase in cases to deal with will certainly mean less judicial availability and less time that can be allocated to this so a further delay and period of waiting for the parties to the case.
5. It is possible that Employment Tribunal fees could come back if the system was better thought out with lower levels of fees and greater exemptions from payment in cases of hardship.
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