It has been seven years since the Supreme Court ruled that the old fees to make a complaint to the Tribunal, was unfair.
Usually, it is the employee that will make a complaint to the Employment Tribunal making claims such as unfair dismissal, discrimination, wrongful dismissal, to name a few. However, although today employees can bring a claim at no cost to them, this was not always the case.
In 2013, the government introduced fees payable by the Claimant when bringing a claim into the Tribunal, in hope that this will reduce the number of “weak” claims and small disputes and to reduce the backlog of such claims. This was a first in the Employment Tribunal system, however, the policy was short-lived due to the criticism it faced. Fees started at £390 for small disputes and could go up to a whopping £1,200 for more complex cases. This received huge backlash and was challenged by Unison (a UK trade union body). Unison argued that the substantial fees could potentially discriminate against women since women were more likely to bring more serious cases to Tribunal, (such as sex discrimination at work) and therefore, would be liable to pay the upper band to make a claim. In addition, Unison argued that the fees are significantly high in contrast to the average earnings in the UK, therefore, it would be a barrier to justice. Unison successfully argued the case resulting in the Supreme Court declaring that the Employment Tribunal claim fees, were unlawful, subsequently, the fees were scrapped in July 2017.
Fast forward to 2024. Are the fees really being reintroduced after the Supreme Court ruled these to be unlawful?
The answer is yes, but with a significant change.
Employment Tribunal fees are set to cost £55 per case with the Ministry of Justice (MoJ) citing it “may incentivise parties to settle their disputes early through ACAS”.
For those who are unaware, ACAS is the body who will attempt to conciliate the matter before the Tribunal stage. If it were successful, the matter will not be referred to Tribunal and the claim is settled by agreement of both parties. Failing this, the matter is referred to the Employment Tribunal for judgement. It also went on to say ACAS “would not only add value for taxpayer money that is spent on providing this free service, it could also help alleviate some of the pressures” that the Employment Tribunal systems were facing.
The £55 fee is said to cover the entire claim journey with no additional fees being incurred at the hearing stage. The MoJ reinstates that the new fees are not to deter (we know it to be mainly employees) from bringing a claim to the Employment Tribunal, but to make it affordable for those with “limited means”, and “would be broadly affordable to the public and proportionate to the remedy being sought”.
So, where does the money go?
It has been said that the fees will be injected back into the Employment Tribunal system as a means of paying towards the running costs and bringing more value to the free ACAS process stage.
What does this mean for our clients and other employers?
Employers still need to be cautious when managing employees as in 2022/23, compensation was awarded in 790 unfair dismissal cases, up 24% on the previous year. The average award was £12,000. In 2022/2023 the maximum award made was in a disability discrimination case, totalling £1,767,869. Disability discrimination also received the highest average award, closely followed by sex discrimination (MoJ).
Reintroducing a fee for making a claim to Tribunal has no bearing on an organisation’s knowledge and ability in managing employees lawfully. The gap in abilities will remain regardless of the new fees. The new Employment Tribunal claim fees are deemed affordable, and with the possibility of the compensation awards we have just mentioned above, would employees really be put off paying £55 after perceivably suffering unlawful/unfair treatment at work?
At HR Habitat, we found that even with a robust company handbook and policies, employers are still unlawfully conducting HR matters such as redundancies, terminations and disciplinaries, as a small example. There is no ‘one size fits all’ and each case requires careful consideration of the different laws that may apply. Simply attempting to follow a policy is not enough. Just ask Natwest plc, who were unsuccessful in their defence of a termination of an employee who was engaging in online sex work! You would think such a reputable high street brand would have enough expertise, knowledge and the ability to execute a sticky HR matter lawfully.
Our approach at HR Habitat is a comprehensive and strategic method which allows us to view the potential risks and implications in your employment matter. We then apply the relevant legislations to ensure that you meet your employer obligations and that there has been no barrier to justice for the employee.
Give us a call today for all your employment and HR matters on 0330 133 5088. You can also send us an email on info@hrhabitat.co.uk or request a quote here.
