You have probably heard that fees to access Employment Tribunals were abolished by the Supreme Court earlier this year, but what does it actually mean for employers?
Confusion has reigned since the judgment was handed down because it has left some thorny issues unresolved, so we don’t have all the answers yet. But here is what we do know at this stage.
Why were Employment Tribunal fees abolished?
The introduction of fees resulted in a dramatic fall in the number of cases put before tribunals. There were serious concerns that the fees unjustifiably impacted on the right of access to justice, frustrated the operation of the law and discriminated against women and other protected groups. In July 2017, the Supreme Court concluded that they were unlawful and quashed them with immediate effect.
What is happening in the aftermath of the judgment?
For those individuals who paid fees at an Employment Tribunal or Employment Appeal Tribunal between July 2013 and July 2017, they can now apply for a refund. This includes employers, so if you were ordered by a tribunal to reimburse the fees of an employee who brought a claim against you and you have evidence that demonstrates this, you can apply for a refund.
However, if you repaid the employee under a settlement agreement, you will not be able to apply for a refund.
What is going to happen to historic claims?
It is not known what will occur to those employees who did not submit a claim or had their case thrown out because of fees during July 2013 and July 2017. It is likely that it will be dependent on the type of claim and the circumstances. However, it is not impossible that some claims of this nature, even though they are many months or years out of time on the face of things, may be allowed to continue.
So what does this all mean for employers?
Firstly, it means you could be due a full refund, plus you will be paid interest of 0.5%, calculated from the date of the original payment up until the refund date.
Secondly, the removal of Employment Tribunal fees could result in it being easier and cheaper for employees to take their employer to tribunals. This could mean that you find yourselves having to deal with vexatious or frivolous claims. It may also mean that employers feel more pressure to reach a settlement agreement before stepping inside a Tribunal.
But what it really means that it is time for all employers to make sure their employment practices can stand up to scrutiny. To do this, here are four key tips for your business:
1. Review your Contracts of Employment – make sure all your staff are on the right contract and you understand the obligations for each type of contract.
2. Review your Employee Handbook to make sure that you have clear and robust policies and procedures in place which comply with current legislation.
3. Make sure all those in managerial or supervisory roles have been suitably trained in HR and Employment Law matters.
4. Seek legal advice when dealing with complex workplace issues, for example grievances, disciplinary, dismissal, redundancy and TUPE.
But are we waving goodbye to fees forever?
The Lord Chancellor, David Lidington, has indicated that the government intend to reintroduce some form of fee to access Employment Tribunals to avoid frivolous or vexatious claims. However there is no indication of what new fee system could be introduced or when it is likely to come into force.