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A watershed for workplace justice?

Imagine losing your job unfairly and, in the middle of worrying how to pay your bills, you also have to find potentially thousands of pounds to seek recompense from your employer.

Doesn’t sound very fair, right?

Well, the Supreme Court didn’t think so either, which is why, in a landmark legal event, it has decided to abolish controversial employment tribunal fees.

This followed a challenge by union Unison, on the basis that the fees for taking a case to the Employment Tribunal – which could be as high as £1,200 – discriminated against workers, and particularly those on low incomes.

As a result, not only has the employment tribunal fee system now been abolished as of 26 July, but anyone who has forked out to fight their case already (an estimated £32 million over the past three years) will be reimbursed.

This is being hailed as one of the most important judgements in employment law for the past 50 years. It overturned previous decisions by the High Court in 2013, and the Court of Appeal in 2015. The seven judges involved in the decision unanimously agreed with Unison, that the fees had originally been introduced by the Government unlawfully.

It was then Lord Chancellor, Chris Grayling, who originally brought in employment tribunal fees. They started at around £160 and increased to between £230 and £950 for subsequent hearings. This means that some claimants had to pay as much as £1,200 depending on the type of case they intended to bring.

What does this mean?

Well, on the face of it, it’s a good thing for employees, as it will make it much easier for them to access justice if they feel their employer has failed to act in accordance with employment law legislation. Figures suggest that the number of people pursuing claims has declined by more than 79 per cent in the years since the fees were first introduced. This is because people, particularly those on low incomes, simply couldn’t afford to fight their case.

However, it’s not all necessarily positive, because the flip side of this is that the fees did help to filter out weaker claims, limiting the potential for wasted time and money for both employees and employers.

For employers, it means they will need run a tighter ship than ever before. While it’s always important to treat employees fairly and within the boundaries of the law, the abolition of fees means that the risk of litigation is likely to increase significantly. Any business with workers will need to make sure it has robust policies and procedures for every aspect of how it deals with its people – from the way mergers and acquisitions are handled, to terms and conditions of employment, maternity-related issues and disciplinaries. Not doing so now has a much greater chance of landing them in legal – and as a result financial – hot water. Employers needs ensure they keep themselves clued up on what they can and can’t do.

We would also advise employees who feel they’ve been badly done by, to take time to think things through before running headlong into a legal case. That’s because, whether you have to pay fees or not, the tribunal process shouldn’t be taken lightly. It is, almost always, emotional and stressful and the tribunal process is not going to get any less unpleasant.

It is clear that the introduction of fees has denied many employees access to justice by implementing a culture that we must “pay to have principles”. This is simply unaffordable for a significant number of workers in the UK and the landmark ruling we have seen recognises that this has been unfair. It is not uncommon to expect a fee in order to bring a claim, as in many other areas of the law, and the courts always push for claimants to consider the costs of bringing any claim against the potential award on a general level. However, this new turnaround is big news for employers and makes it paramount to ensure they are clued up on what should and shouldn’t be doing to avoid litigation and consequent risks to their business.

Whether you’re an employer, or an employee, if this blog raises questions for you, you can call us to arrange a free, no obligation, initial chat, contact us on (01482) 226655 or email info@jameslegal.co.uk 

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