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In a landmark ruling, the Supreme Court has ruled that charging people up to £1200 so they can challenge the legality of their employer’s actions is illegal.
Fees were never introduced in Northern Ireland, and it is notable that there was no drop off in the number of applications to go to their Industrial Tribunal. Meanwhile, across Great Britain, ET applications plummeted by 70%. In Scotland, the SNP Government stood for election in 2015 with a pledge that, as soon as they had the power to do so, they would legislate to remove Employment Tribunal fees, justifying this on the premise that someone who has just unfairly lost their employment is unlikely to be able to find the money and will, therefore, be denied access to justice.
Introduced in 2013, fees were initially justified as being to reduce the number of “weak claims”, though a financial incentive later became apparent with the Justice Minister at the time stating
"That case was never particularly convincing and the result, inevitably, was that many people with a valid claim were unable to bring it because they couldn’t pay the fee".
Alongside the fees, the Cameron Government also introduced mandatory Early Conciliation. This is a process whereby the parties, with facilitation by ACAS, can try to reach an out of court settlement and is something applicants have to do before they can complete their ET application. Although there’s nothing wrong with this in principle, my experience of it wasn’t good. I have found few employers prepared to negotiate towards a settlement, preferring to gamble on whether or not the applicant could find enough cash for the fee. Perhaps, with fees now found to be illegal, there will be a greater incentive for all sides to take a more pragmatic, conciliatory approach.
Dave Prentis, the UNISON General Secretary, welcomed the Supreme Court ruling saying:
"The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too".
In this context, the positive role of trade unions shouldn’t be underestimated, and not just because it is through UNISON’s expertise and persistence that this ruling has been achieved, but more locally and practically as well. A well-trained union rep can defuse and head off the vast majority of cases referred to them, most often through facilitating a pragmatic solution, sometimes through persuading an individual that their case doesn’t stack up. As an example, this leads to a significant reduction in the number of cases going to grievance, and those that do proceed tend to be much better presented. This is something that many employers could easily miss.
That principle also filters through to ET applications. Unions take great care in presenting cases, cases they support are exceptionally unlikely to be regarded by the Tribunal as “malicious, vexatious or frivolous” or “in bad faith”, and a significant proportion are successful.
Of course, most trade unions opted to pay these fees for their members, but many, many people who weren’t in a union must have been denied access to justice by this ill-conceived policy. While it is likely that those who applied to the ET will have their fees repaid, at this stage it seems likely that those who couldn’t afford the fee at the time will have missed their opportunity, but it remains to be seen if any pragmatism will be shown in that respect.
I’d be interested to know your thoughts on the issues raised in this article, so please leave a comment or, if you’d like to discuss anything more directly, please contact us or give me a call on 07736068787.