EMPLOYMENT TRIBUNAL CLAIMS MANAGEMENT Employment Tribunal fees: the 2017 Supreme Court decision in the Unison case
The Decision
The charging of fees to bring an Employment Tribunal claim, introduced in 2013, was unlawful and discriminatory. The Supreme Court decision was effective immediately on 26 July 2017. Those who paid Employment Tribunal fees are entitled to claim refunds.
Impact of the Decision
Refunds will include 0.5% interest and apply to the Employment Tribunal and the Employment Appeal Tribunal. The Ministry of Justice's estimate of the total refund: £32.5m. As at 18 December 2017: £1.8m is reported to have been refunded. Refunds are available to those who paid fees at an Employment Tribunal or Employment Appeals Tribunal between 29 July 2013 and 26 July 2017.
Refunding of fees
How to apply: https://www.gov.uk/employment-tribunals/refund-tribunal-fees
(Refund form 2R for respondents) Claims struck out for the nonpayment of fees (Reinstated cases)
Approximately 7,500 cases were struck out due to non-payment of fees. These are being treated as if they had not been struck out at all. Claimants are being actively contacted by the Tribunal service and asked whether they want their claims to be reinstated. These are historical claims not brought in the first place (for example, where the claimant could not afford the fee). The claimant might still have to enter the ACAS early conciliation process and there is nothing to stop them now doing so.
Claims that were never brought because of fees
(Lost chance or ‘legacy’ cases)
It will be a judicial matter as to whether such claims can proceed out of time. Factual analysis is required in each case to consider whether it was reasonably practicable for the claim to have been presented within the applicable statutory time limit, taking account of the asserted impact of the requirement to pay a tribunal fee on the decision not to pursue the claim, the point at which the claimant became aware that they had a legacy claim and how soon they then acted to pursue their claim. Respondents will need to assess whether a fair hearing of the claim is still possible and make appropriate representations to the Tribunal based on the facts and circumstances in each case. These issues are likely to be addressed at a Preliminary Hearing.
ACAS is now the only gateway to the Employment Tribunal. ACAS
This is likely to lead to an increase in low-value claims, for example for: holiday pay, unpaid wages, notice pay, ordinary unfair dismissal claims etc. Respondents facing reinstated or lost chance claims should seek evidence of the Claimant's compliance with ACAS early conciliation. Businesses should:
Howard Kennedy recommendations
conduct a risk assessment to identify the likelihood that they could be required to respond to a reinstated claim and to quantify the associated potential liability
assess the likelihood that they could be required to respond to a lost chance claim
consider the extent to which any reinstated or lost chance claims could now be fully and fairly defended by the business
review/update HR policies and procedures to ensure these are legally compliant and ensure managers are trained on their effective operation and on employees' contractual and statutory rights to reduce the potential claims risk.
Increase in Employment Tribunal Awards Compensation limit Maximum limit on a week's pay Maximum compensatory award* for unfair dismissal
Previous limit £489 £80,541
From 6 April 2018 £508 £83,682
*The maximum compensatory award for an ordinary unfair dismissal claim is the lower of the numerical cap or 52 weeks' gross pay. In dismissal cases, the new limits apply where the effective date of termination falls on or after 6 April 2018.
Jane Amphlett Partner: Head of Employment T: +44 (0)20 3755 5360 E: jane.amphlett@howardkennedy.com
Lydia Christie Associate: Employment T: +44 (0)20 3755 5402 E: lydia.christie@howardkennedy.com