Last year, our employment law solicitors in London reported on the scrapping of the employment tribunal fees. 10 months later, we look at the impact of the Supreme Court judgment in R (on the application of Unison) (Appellant) v Lord Chancellor (Respondent) on employment tribunal claims, and on the success of the employment tribunal fees refund scheme.
employment tribunal fees
Those who have brought employment tribunal claims since 27th July 2017 won’t have had to pay employment tribunal fees. However, since July 2013, claimants were subjected to an employment tribunal fees regime ranging from £390 and £1200 depending on the type of case. The fees to bring discrimination claims were at the higher end of the scale based on the complexity and the time they would take to handle. This had a particular discriminatory impact on women discriminated against on maternity grounds.
Although the fees had been introduced with the aim of reducing the number of ‘vexatious and unmeritorious’ claims, many top employment solicitors lobbied hard against the employment tribunal fees, arguing that they would reduce access to justice at a time when people would be particularly vulnerable after being treated badly by their employer. Claim numbers fell by 70-80%, with a noticeable drop in discrimination claims.
Increase in claims suggests lobbyists arguments are borne out
In the first 3 months after the fees were abolished, employment tribunal ‘single’ claims, for individual issues such as an unfair dismissal and wrongful dismissal, increased by 66%, although multiple tribunal claims fell by 15%. By the end of 2017, this increase in single claims had been sustained. ACAS statistics show that by the end of the year, they were receiving in the region of 2,200 notifications per week, compared with 1,700 per week before the ruling of the Supreme Court.
The increase in claims suggests that the arguments of those opposed to the employment tribunal fees were correct, and the fees did act as a barrier to access to justice for many people. Interestingly, it has been reported that although employment tribunal claims have increased since the Supreme Court’s decision, there has been low uptake of reinstated claims – claims that were rejected because the fee wasn’t paid – and deterred claims: claims from people who were genuinely put off bringing their claim because of the fees.
UK employment lawyers advise employers to refresh their approach
One of the other negative impacts of the employment tribunal fees regime is the suggestion that some less scrupulous employers took advantage of the deterrent effect of the fees. With fewer employees pursuing employment tribunal claims, many top employment solicitors were aware that some organisations became less thorough about complying with rules on disciplinary and grievance processes and took their employment law obligations less seriously. Now that the fees are no longer in place, it seems that employees are more prepared than ever to bring claims and are perhaps more aware of their rights than before. As a result, employers would do well to make sure staff policies are up to date, and that all those with people management responsibilities are properly trained to handle employee issues in the workplace.
employment tribunal fees refund scheme needs ‘further action’
The refund scheme for claimants to recover employment tribunal fees that they had paid between 2013 and 2017 was announced in October 2017 and rolled out in November 2017. The Ministry of Justice said it had received over 4,600 refund applications by 18th December 2017, and made 2,151 employment tribunal fee refunds, totalling £1,808,310. However, it seems that many people have not yet claimed the refund they are entitled to.
Although the Ministry of Justice originally said that it would not be actively encouraging people to apply for refunds, Justice Secretary David Gauke has recently written to the House of Commons Justice Commission to say that although the refund scheme had been making ‘reasonable progress…further action was necessary‘. As a result, the letter confirmed that they would be writing to everyone who paid an employment tribunal fee, but who has not yet applied for a refund. The first batch of 2,000 letters, raising awareness of the employment tribunal fees refund scheme, and providing details on how to apply, was sent out on 9 April 2018.
Fees may still be reintroduced
In November 2017, the then Lord Chancellor, David Liddington announced in a justice select committee that the intention was still to charge fees but accepted that a new fees regime would have to ensure access to justice. We have no more news on this at present – with other matters taking up Government time, but will be keeping an eye on this and will bring more news when we hear it.
Our team of top employment lawyers in London can help make sure your employment policies and practices are up to date and legally compliant. We can provide practical training for your key personnel in disciplinary and grievance processes, to make sure you are getting it right. We regularly handle employment tribunal claims on behalf of employers of all sizes and in all sectors. We also advise on employment law for employees, acting in all kinds of employment negotiations and disputes including unfair dismissal claims and discrimination claims.
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Posted on: Friday, 18 May, 2018