The decision made on 26 July 2017 by the Supreme Court has been welcomed by employees and trade unions, but has understandably caused employers a lot of concern.
Prior to July 2013, it was “free” to bring an Employment Tribunal claim. That changed when fees were introduced in July 2013 requiring claimants to pay a fee of up to £1200.
The impact of the fees was that it deterred many claimants from making a claim, which was positive news for employers. Before fees were introduced, the average number of cases taken to tribunal was about 5,000 a month; this fell to about 1,500 a month after fees were brought in.
Supreme Court decision
1. The Court decided that the fees have the effect of preventing access to justice.
2. There was “a dramatic and persistent fall in the number of claims brought” and fees were the most frequently cited reason why employees decided not to make a claim.
3. The Court decided that the fees are indirectly discriminatory against female claimants, because a higher proportion of women bring the type of claims for which the higher fee is payable (discrimination claims).
With immediate effect, fees will no longer be charged.
What does this mean for employers?
1. Employers who welcomed the fee system when it was introduced will be nervous about what happens now. Whilst we do not know exactly what will happen next, it is unlikely that fees will be abolished completely but any new fees introduced will have to be significantly lower.
2. It is very likely that there will now be an increase in claims because, as things stand now, anyone who has been treated unlawfully or unfairly at work will no longer have to pay to take their employer to court.
3. Since fees were introduced, employers might not have taken a careful approach when they released staff and might have made bolder decisions in relation to how they dealt with workplace disputes, counting on their employees to be put off by the fees and not make a claim. Following this judgment, employers might want to act more cautiously moving forward, certainly until we know what the new system is going to be.