WATCH OUT – MORE EMPLOYMENT TRIBUNAL CASES ARE LOOMING
At this time of year, employers are usually in buoyant mood looking forward to some well-earned holiday. However, this week’s Supreme Court decision to declare the requirement to pay a fee to lodge an employment tribunal claim (“Fees Order”) as unlawful has no doubt dampened the mood somewhat.
The long running series of challenges through the court system reached its UK zenith on Wednesday and from all reports the government has accepted the decision. In short the Court held that the Fees Order:
- prevents access to justice;
- imposed unjustified limitations on the ability to enforce EU rights. (i.e. those claims based on EU law), and was thus unlawful under EU law.
What does this mean?
With immediate effect, the tribunal and EAT fees cease to be payable under the existing scheme. It is understood that those designated tribunal offices where claim forms can be lodged in person are not requiring a fee to be paid; and it is understood that the facility to submit a claim on-line will be updated as soon as logistically possible.
There is a view that it is unlikely the fees regime will be abolished entirely. It is probable that the government will issue a consultation paper and then bring in a new fees regime, with fees for claimants at a lower level and/or introducing a fee payable by the employer when it lodges its ET3 response - watch this space – though given the current matters exercising Parliament it may not be too far up the priority list.
Fees already paid are likely to be reimbursed by the Government, which in theory might sound like a simple process. But what about those cases where the losing Respondent employer was ordered to reimburse the Claimant:
- Should the Claimant be required to reimburse the Respondent employer; but what if they don’t?
- Should reimbursement be made direct to the Respondent employer; but what if the Respondent has not paid the Award to the Claimant?
As usual - too many questions and not enough answers. It is also too early to say whether there will be an automatic manual trawl of all decided cases, or whether a party will have to make an application to recover the fee.
Perhaps most alarmingly - what about claims people chose not to bring because of the fees? Presentation of a claim now, could be out of time: submission of a late claim is generally not accepted unless it was not ‘reasonably practicable’ to present the claim in time (or ‘just and equitable’ in discrimination claims). Consequently, it is possible that we may see arguments run by claimants (who chose not to bring claims because of the fees) that it was (i) not reasonably practicable for them to bring a claim or (ii) in light of the Supreme Court’s decision, it would be just and equitable for the tribunal to extend time for bringing a claim. What approach the tribunals will take or what factors will they take into account in considering such arguments remains to be seen. For example, will whether a claimant did, or did not, explore pre-claim conciliation with ACAS be a relevant factor?
How does this affect employers?
Reverting back to the pre-fees regime could well result in a rush back to the high levels of claims (including all the spurious and minimal merited cases the Fees Order sought to control) that beset employers prior to the Fees Order coming into effect back in July 2013.
Do we need to do anything different now?
Continue to put yourself in the best possible position to defend claims.
See our Information Update on: How to avoid being called to the Employment Tribunal here.
If you are planning to dismiss an employee, please seek advice beforehand. If you do dismiss an employee unfairly it could be costly! The maximum compensatory award for unfair dismissal is up to a year’s pay (capped at £80,541) plus basic award. Compensation for discrimination is unlimited.
Legal Expenses Insurance
If you have taken advantage of legal expenses insurance providing protection against Employment Tribunal defence costs and awards, it is a usually a condition of that insurance that you have taken advice from the helpline before taking action. Failure to do so may well result in your insurance being invalidated.
In any event it is always better to check with a specialist before taking any action against an employee and if you are contemplating such action or would like to discuss any of the above, without obligation, please contact us on 03456 446 006.