Employment tribunal fees found to be discriminatory
Employment tribunal fees were introduced in 2013 in a bid to reduce the number of spurious and weak claims reaching court. The employment tribunal fees themselves ranged from £390 to £1,200, with discrimination cases costing more because of their complexity.
They certainly had an impact on the number of claims being raised: the Government recorded 79% fewer cases being raised over a three-year period. The trade union, Unison, argued that these fees prevented workers from accessing justice. After a lengthy legal battle, this view has recently been upheld by the Supreme Court who found employment tribunal fees discriminatory.
What makes employment tribunal fees discriminatory?
The Supreme Court found that the higher fees for discrimination claims were indirectly discriminatory because it was mainly women who brought discrimination claims. The Court also added that those on low or middle incomes could not afford the fees without sacrificing “reasonable expenditure for substantial periods of time” and that there was a real risk that individuals had been prevented from bringing claims.
Moreover, the Court said that the fees meant it was irrational for an individual to bring a claim if they were seeking to assert a right rather than a financial award; for instance, their right to take a rest break.
Since the introduction of tribunal fees about £32 million has been collected by the Government. It now looks as though these fees will have to be reimbursed by the tax payer. Dominic Raab, the Justice Minister, has said that the collection of tribunal fees would cease “immediately”.
Dave Prentis, Unison general secretary, said: “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”.
What the scrapped employment tribunal fees mean for businesses
There can be little doubt that there have been employees, who in the past, have put forward spurious claims in the hope of extracting a settlement sum. This is in the knowledge that most employers are reluctant to go to a tribunal because of the time, expense and public exposure involved. It therefore seems likely that, in the future, the Government may consult on introducing a new fee regime, perhaps with lower fees.
In the meantime, we may see claimants arguing that that it wasn’t reasonably practicable for them to raise a claim whilst the fee system was in place and therefore the time period for them to bring a claim (usually 3 months) should be extended. We’ll have to wait to see how the courts will react to this argument.
Given that claims are now more likely, employers may want to review the way they handle HR issues ensuring that fair and robust processes are in place so that they can adequately defend themselves if they are challenged.
If you have any questions, please contact our team.
