• Tribunal fees: what happens next?

  • 26 Jul 2017
  • Comments 5 comments

Four key areas to consider now the controversial charges have been revoked

In a landmark ruling this morning, the Supreme Court decided that tribunal fees are unlawful. But what happens next?

Refunds all round

Those who have brought a case since July 2013, when the fees were introduced, will have their money refunded. Trade union Unison, which brought the case to the country’s top court, has said this will amount to more than £27m.

And Nicholas Robertson, head of employment in London at Mayer Brown, pointed out: “Employers who have had to pay fees to a claimant following the loss of an employment tribunal case may be able to claim the cost of those fees back too (although that is less clear cut).”

New legislation?

Unison’s argument partly hinged on the fees being introduced under a statutory instrument. This is a form of secondary legislation, as opposed to a piece of primary legislation such as an Act of Parliament.

“The government is likely to move quickly to put in place a more proportionate replacement fees scheme,” said Diane Gilhooley, global head of the human resources group at Eversheds Sutherland. “What that will look like remains to be seen.”

Beverley Sunderland, managing director at Crossland Employment Solicitors, suggested that the government’s next move might be to try and pass a statute for tribunal fees, but added: “They do not have a majority and, given the clear and unequivocal statistics of the impact of fees on the numbers of claims brought, it is difficult to see how any such legislation will get through parliament as no MP, whatever their politics, is likely to vote for it.”

Both the Labour Party and the Liberal Democrats vowed to scrap employment tribunal fees in their manifestos ahead of the June general election.

More cases...

Figures cited during the course of the case revealed that the number of tribunals brought had plummeted by as much as 70 per cent since the fees came into force.

“Once fees are scrapped, it is likely that there will be a significant rise in the number of claims being brought,” said Paul McFarlane, chair of the Employment Lawyers Association’s legislative and policy committee and partner at Weightmans. “This will have knock-on implications for business, Acas and the employment tribunal system itself – all of whom will have to deal with the increased volume of claims.”

… or more settlements

However, Robertson said that, now the fees had been scrapped, employers may not want to wait and see if their disgruntled employee will bring a claim and will opt to settle outside of the courtroom.

“My view is that they will not return to those levels because the Acas mandatory conciliation scheme will continue to encourage parties to settle claims before litigation,” Robertson said. “Now that the fees regime for employment tribunals has gone, I suspect employers will be more likely to settle at the Acas stage, rather than waiting to see if claimants follow through and issue a claim.”

Related articles

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Review proposes changes to fee remission process, but rejects calls to end fees for those pursuing pregnancy and maternity discrimination claims

Experts clash over impact of tribunal fees

Does 70 per cent drop in cases mean ‘vexatious’ claims have been weeded out, or has access to justice been denied?

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Comments (5)
  • The original system was too far towards the claimant but the changes swung the balance too far and has stopped many claimants from making a claim because it is too complex. This court decision will at least allow the balance to be reviewed and a much fairer system must be implemented. Since 2013 a huge number of claimants will have given up or never claimed because of the complexity. It's just not fair on them.

  • @ Andrew Dane. Spot on. My former employer,to my shock,also refused to engage with ACAS early conciliation. Imagine. How arrogant and evil. Some of these issues can be resolved at conciliation or having a mediator but because they probably felt that people had to jump the fees hoops,they were willing to ignore conciliation. And not that I don't have a good case with lots of evidence. The nonchalance was just staggering and I was so shocked that they could even refuse to use ACAS. That should be mandatory if the government wants to reduce claims.

  • Access to justice in terms of employment rights should not simply be by ability to pay. This demonstrates all employees should have rights despite their lower income.

  • One aspect that shouldn't be lost in the furore about fees being scrapped is that, alongside fees, the Government introduced the obligation to seek mediation via ACAS. Some employers, noticeably Government departments, have become very blase about co-operating with this obligation but it is probable that this will be emphasised even more with fees suspended or dropped. ETs could also look very closely at how parties interacted at this stage to minimise the burden on the ET service.

    The requirement to seek mediation has also, in my view, had an impact on the fall in the number of cases, as well as the fees which were obviously denying many access to the justice system. We should expect mediation to continue to feature prominently in any new emerging model for ET cases.

  • Now that tribunal fees have been scrapped the number of claims will probably increase.

    Is this not now the right time to introduce the early intervention of workplace mediation into the procedures, particularly online mediation, with its many benefits of resolving disputes online? This will cost-effectively, mitigate any potential increase in claims.