Four months on, what have been the consequences of scrapping tribunal fees? – Ben Stephens, Paralegal.
A colleague of mine was on the phone to ACAS earlier this week and was told they are already starting to see a significant rise in the number of claims following the Unison decision in July. For those of you who aren’t employment law anoraks, this was the case that abolished tribunal fees overnight back in the summer, to the delight of many disgruntled employees. So, four months on, what have been the consequences of scrapping fees?
Fees had been introduced in June 2013 and started at £130, rising as high as £1,200 in certain cases. Claims quickly dropped by 70% as potential claimants were put off by the hefty court fees – particularly steep drops were seen in low-value claims as the fee was based on the time spent by the court rather than the cash value of the claim, with many of these instead being started in the small claims court. Since fees were abolished in the summer we are already seeing more claims go to tribunal as claimants that wouldn’t have been able to justify the fees, especially those who had just left employment, can now bring a claim essentially for free using no-win no-fee lawyers. We’re also expecting to see a rise in claims from trade unions, for group action cases that had previously been too expensive to bring to tribunal.
What about late claims, not started because of the cost?
It is still unclear if these claims would be allowed. One case has been restarted after an application to help with fees had been rejected and the claimant couldn’t afford to pay the issue fee. The scope for this has so far been limited, but it has been speculated that any claim that had been seriously contemplated but not pursued because of tribunal costs could now be brought late.
So what does all this mean?
If you have ever paid any tribunal fees, as an employer or employee, you can claim them back from the Ministry of Justice. After a successful pilot scheme, the government has just opened the process up to the general public and details of how to claim money back can be found on employmenttribunals.service.gov.uk
If you can show that you didn’t make a claim because of tribunal fees, you may be able to make a late claim against an employer or former employer. You have a better chance of being able to make a late claim if you can show you took advice nearer the time and were told not to make a claim because of the fees, especially if you had a strong case to begin with.
Employers need to be alert to a higher risk of tribunal cases being made by employees. Employees should be put on standardised, written contracts if they aren’t already and formal disciplinary and grievance procedures should be introduced or reviewed.
We would also recommend reviewing any disputes with employees in the last four years to see if you are potentially at risk if a late claim is brought.
For the government:
The Supreme Court did not rule all tribunal fees unlawful, only the structure that has been in place since 2013, so the Government can reintroduce tribunal fees at different rates. Whether they consider this a priority remains to be seen.
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