Abolition of Employment Tribunal Fees – What should Employers expect now?
Since 2013, employees have had to pay a fee of up to £1,200 to take their employer to a tribunal.
This led to a drop of around 70% in the number of claims, enabling some employers to take a robust approach to employee relations because of the heavily reduced risk of a claim.
The Supreme Court has now ruled these tribunal fees were unlawful, because when parliament gives employment rights to individuals, the Lord Chancellor cannot effectively take action to remove them by bringing in high fees.
All fees paid by employees from 2013 will now be refunded by the government.
Anyone wishing to bring a claim will still have to go through ACAS preclaim conciliation process which will enable you, the employer to evaluate the merits of the claim.
Remember, tribunals like documentary evidence so if you are in any situation which may conceivably result in a claim ensure you keep notes as you go along.
Above all do not take precipitate action without consulting an HR professional.
Where does that leave employers?
First, I believe it unlikely that fees will disappear entirely.
The government will probably bring in a new fee regime, with lower fees and possibly with employers contributing to the cost at the outset.
But without any details and given other issues preoccupying the government, the reintroduction of fees is a low priority so there will probably be a no fee tribunal situation for some time.
Second, any employees who might have brought claims between 2013 and 2017, but who were put off by the fees, can now seek permission to bring them ‘out of time’.
This will be easier with discrimination cases rather than unfair dismissal cases. There will inevitably be many such cases brought by ex-employees.
It is far from clear how tribunals will deal with these ‘out of time’ claims, so if you have any skeletons dust them and make sure you have coherent records.
Employees will obviously be less inhibited about bringing claims to a tribunal.
Although claims did reduce by 70% with the introduction of fees I can’t honestly believe that employee relations suddenly improved by 70%, if the tribunal threat was reduced.
To avoid becoming bogged down in litigation, reputational damage, cost and management time in preparing for and appearing at a tribunal unless you, the employer, decides to settle, now is the time to review your employee relations policies and procedures to ensure your grievance handling and disciplinary processes are up to date.
Before commencing disciplinary proceedings, you should conduct a thorough investigation and be confident that your action is appropriate.
Wherever possible, and practicable, use informal dispute resolution and, if necessary, use mediators to stave off the stressful, expensive and time-consuming tribunal preparation and attendance.
The ACAS preclaim conciliation is easy hurdle for any claimant to climb over and, in my opinion, won’t stop many claims from going forward.