It was the Coalition Government which, in 2013, introduced fees to take a case to tribunal. As a result, the number of tribunal cases dropped dramatically – up to 70% in some regions.
The union Unison argued that this made it “virtually impossible or excessively difficult” for some individuals to exercise their employment rights and this week the Supreme Court agreed with them. The introduction of high fees has been ruled illegal and, as a result, not only will fees cease immediately but the government may have to pay back an estimated £27m.
So what do we think about this decision, and what will the impact be on our clients and other SMEs in the country?
Well, firstly we are glad about the decision. We are glad that we live in a democratic country where workers’ rights are protected and people have the right to challenge the bad behaviour of employers. The introduction of fees quite clearly prevented many people accessing justice and definitely led to a different approach to dealing with problems in the workplace. It became easier for the employer to ‘take a risk’ because they could judge whether the employee would risk the fees required to go to tribunal. Less scrupulous employers could act outside the law if they didn’t think the employee could afford or would risk the tribunal fee. Employers who had become used to the protective cocoon of ‘they won’t dare risk the fees’ will have to be more careful.
Yes, up to 2013 it was too easy for cases to go through the tribunals which really had no merit – frivolous cases, vexatious claims, people who just wanted their day in court so that they could tell everyone how angry they were, even if they were unlikely to win. We do think that more could be done to prevent the clearly ‘without merit’ cases reaching tribunal. The more recently introduced ACAS early conciliation process goes some way towards this but it is not enough. ACAS conciliation can help cases to be settled before reaching tribunal, so saving time and expensive legal fees as well as tax payers’ money. What the early conciliation process does not do is advise employers and employees on the merits of the case or explain the points of law to them. We think that would do a lot more to prevent the more clear-cut cases from getting to tribunal – whether because the employer realises it and settles, or the employee realises it and does not pursue the case.
Those cases which are not so clear-cut and which tribunal panels take so much time and care to understand, evaluate and make proper judgement on, are the ones which should not be deterred by fees or any other penalty system, as each side deserves to put their case.
For now, there is no doubt that the number of cases going to tribunal will increase hugely. At Camino HR we will go on supporting our clients to act fairly and properly within the law and encouraging them to promote positive, healthy working relationships.
So much can be done, easily and cost-effectively, to train managers in basic employment law and to equip them with the leadership skills they need to manage people. Don’t hesitate to contact Jane or Sophie at email@example.com if you would like to know more.