• Six months ago the Supreme Court in R (on the application of UNISON) v Lord Chancellor decided that employment tribunal fees (which had been in place since 29 July 2013) were unlawful.

    The impact of this decision is yet to be fully appreciated, but we will have a clearer view of the situation within the coming months.

    The first impact of the Supreme Court’s decision is on the number of claims being issued since the requirement to pay an issue fee was removed. The most recent published statistics show that in August and September 2017 following abolition of the fee regime single claims rose by upwards of 100% compared to previous months. It is anticipated that once published, the statistics for the final quarter of 2017 will show that this trend has continued.

    This not only paints a concerning picture for employers in terms of the heightened risk of claims being brought against them but also poses significant practical difficulties for the Tribunals themselves. Given the reduced number of claims Tribunals have been called to deal with in recent years (coupled with reduced budgets available) many Tribunals are simply not equipped to deal with a doubling in the number of claims.  Our own experiences in recent months have shown that this has resulted in Tribunals taking longer to deal with applications and correspondence, long hearings being listed in some cases well over a year after the claim was issued and even short telephone hearings being listed months rather than weeks after the notification.

    Beyond this, employers who faced claims that were abandoned or withdrawn due to the Claimant not paying either an issue or hearing fee also now face the risk of such claims being re-activated. It is understood that approximately 8,000 such claimants have been written to by the Tribunal service and given a deadline in February 2018 to confirm whether or not they would like their claim to be re-commenced. This could logistically create issues in responding to such claims in circumstances where managers, witnesses and even lawyers involved in the case have moved on in the intervening years.

    Less clear cut is the position with regards to claims that were never commenced because the Claimant was put off from issuing the claim due to the fees. For now, these types of cases have only been heard in the Employment Tribunal and not yet in the Employment Appeal Tribunal so there is no binding authority on the approach Tribunals should take. Some tribunals are taking a very strict approach, placing the evidentiary burden on the prospective claimant to show that it was not reasonably practicable for them to file the claim and that they acted promptly when it became practicable to do so (the normal approach in claims brought outside the usual time limits). Others (for a good example see the decision of the Croydon Employment Tribunal in Benton v Give 2 Give case number 2302156/2017) are taking an approach that will be welcomed by Claimants by stating that the simple existence of the fee order (rather than the hypothetical reasonable effect of the fee order in individual cases) may have been enough of a detriment on an individual issuing a claim without in some cases needing to analyse their finances at the point of time in question. Should one of these claims pass to the Employment Appeal Tribunal it will be interesting to see the direction taken.

    It should also be remembered that there is also a system in place for those who paid fees to claim that back from the Government. This includes claimants who settled their claims via ACAS once fees had been paid.

    A clearer understanding of the full impact of the Supreme Court’s decision will begin to take form in the next 2 to 3 months, but the indication at this stage is that the number of claims is growing at a steady rate and that the Tribunal system itself is having difficulty keeping up with this.

    This content is correct at time of publication

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