Employment Tribunal Fees Unlawful | What Next?

This week has been a hugely significant one for employers and employees alike. On Wednesday the Supreme Court agreed with a view that most of us have held for some time. Namely that the introduction of Employment Tribunal (ET) fees in 2013 was not only unfair and illegal but also potentially indirectly discriminatory.

It is not often I find myself praising trade unions but Unison have to be commended for pursuing this case, which is very much in the interest of fairness and protecting workers’ and indeed citizens’ rights. 

Little more than three months ago I was lecturing my MSc students at Loughborough University about the impact of ET fees and the significant implications for justice in the UK. It was difficult for me to make any positive case for the introduction of fees and, to the best of my knowledge, no compelling evidence has ever been produced to support the claim that supposedly frivolous or vexatious claims would be weeded out by introducing fees. As was the government’s stated intention.

What can be said unambiguously, however, is that the number of claims passing through the ET fell dramatically since 2013 when fees were introduced. A slide I produced for one of my lectures shows how claim numbers almost literally fell off a cliff edge from 2013 onwards. 

If you accept the suggestion that a significant number of claims are frivolous or vexatious it is perhaps possible to conclude that fees were a good thing in terms of protecting employers. If you accept the alternative view, however, -as most do- that only a tiny number of claims are frivolous or vexatious, the only logical conclusion one can arrive at is that the 70% plus reduction in claims represents a clear and often insurmountable barrier to justice. Particularly for female Claimants who predominate (in relative terms to men) in low paid and part-time employment. 

Without natural justice for all citizens, civilised society ceases to exist. The Supreme Court’s ruling must therefore be welcomed. Even, dare I say it, by employers who will inevitably find themselves also needing these very kinds of inalienable rights at some point in time. 

So what now for employers and employees? The most likely scenario moving forward will be a sudden and dramatic recalibration of claims to pre-fees levels. To put this another way, in my opinion there will be a 70% (and probably more) uplift in claims over the next few years and possible sooner. In addition, it is highly probably that there will be a significant initial spike in claims. This will be due to those currently holding back or who might not have otherwise claimed now being encouraged to take action.

Furthermore, there is another potentially very nasty sting in the tail for employers. As the implementation of fees was at all times unfair and unlawful, employees who did not file claims due to cost considerations will now challenge the right to file retrospective claims. The right to do this will inevitably be subject to legal challenges -not least by trade union lawyers- and, if successful, the floodgates will potentially open thereafter. Pause for a moment to consider the implications of the 70% of non-Claimants over the last four years suddenly receiving the right to file claims retrospectively. It could be a PPIesque situation of epic proportions. It is difficult to see how this will be stopped from a legal perspective. So some employers could soon be seeing huge amounts of turbulence in this area.

As an highly active and experienced employee relations and employment law specialist I have seen a notable recent uplift already in terms of the amount of employment law related work we have been doing. Just yesterday in fact I formed a legally binding COT3 on behalf of one of our clients. As a business we are therefore fully prepared to help employers address the deluge of employee relations issues that are inevitably about to start following this hugely important ruling. With Brexit just around the corner, continued economic growth and this week’s landmark Supreme Court ruling now decided, having direct access to high quality UK leading HR expertise has never been more important.

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