LAW: ‘Fire Sale’
EMPLOYMENT TRIBUNALS ARE NOW CHEAPER FOR EMPLOYEES – AND POSSIBLY MUCH MORE EXPENSIVE FOR EMPLOYERS.
There’s a good reason why the decision to abolish fees for bringing an employment tribunal was dubbed “the most important judgment in employment law in the last fifty years.”In a landmark ruling in July 2017, the Supreme Court told employees they no longer needed to pay to bring a claim against their employer, potentially opening the door to a flood of new claims.
Julia Fitzsimmons, employment law specialist and Partner with FBC Manby Bowdler, says there are five things manufacturers need to know.
- The number of claims is rising, with the first official figures out in early 2018, but it is unlikely that employers will see a return to the levels seen pre-2013 when fees were first introduced. However, there will be a backlog of cases causing delays, simply because there are not enough employment judges to hear them all (their number was reduced in line with the lower levels of claims after fees were introduced.) There may be a hike in the number of last minute postponements to hearing cases due to lack of judicial resources – which can be costly for employers taking time out of the business, paying counsel to attend a hearing which does not take place and it may take longer for employment judges to finalise reserved judgements.
- Manufacturing employers who thought a potential claimant had gone away may yet find that they are having to deal with a claim that is now historic and possibly difficult to investigate. This is because claims could be reinstated for employees who previously had their claims rejected because they didn’t pay the fees or didn’t apply for fee remission.
- The normal time limit for bringing a claim is within three months of the action complained of. However, what happens if the fees dissuaded an employee from bringing a claim in that time? Technically, they could bring an application and apply for an extension of time. Any such claims would need to be brought promptly and potential claimants would need to go through ACAS conciliation in the usual way – but for employers, it does raise the issue of historic claims resurfacing.
- Fees could be reintroduced. The Supreme Court’s decision analysed the lawfulness of fees under the applicable regime in a case brought by UNISON. While the Court stated that this particular regime was unlawful, a different regime, for example one that charged significantly less, might not be unlawful. What we may see in the future is the Government pursue its intended reform of the Employment Tribunal system, prompted by the increase in claims. In the meantime, claims are likely to take longer and Tribunals could take longer to deal with applications and correspondence. It may be that Tribunals are stricter in timetabling cases to keep them as short as possible and there may be increased use of ‘guillotines’ on the length of, for example, witness statements and cross-examination.
- With fees removed and the barrier to making a claim now lifted, it is important for manufacturers to work on claim prevention. Make sure you have good employment policies and procedures in place, particularly those in relation to discrimination and harassment. These types of claims are on the increase so its key that employers ensure their workforce is informed about the standards expected and the penalties should they fall short.