Employment Law – Tribunal fees, what’s changed?
Following a unanimous judgment from the Supreme Court on 26th July 2017, tribunal fees have now been abolished. The court found in a case brought by Unison, the fees prevented access to justice and this disproportionately affected women.
From 29 July 2013, claimants in the employment tribunal began having to pay a fee of up to £250 to submit a claim. There was followed by a higher fee if the claim proceeded to a final hearing. Before this, there was no charge to submit a claim or obtain a hearing. So it appears we have gone full circle!
Why has this happened?
The reasoning behind the government’s decision to require individuals to pay tribunal fees was to discourage weak and vexatious claims. The government needed to take action as the tribunal system was facing a crippling 901,272 outstanding cases in March 2013. As a result, the introduction of fees led to a 70% reduction in claims being lodged. More recently, this figure has crept upwards to a 50% drop with the tribunal system facing 470527 outstanding cases in March 2017. (Gov.uk)
Unison claimed the tribunal fees presented a significant bar to access to justice for individuals who considered they had been wronged by their employer. The Supreme Court agreed, stating that access to justice is a constitutional right under English law and the fee system unjustifiably interfered with that right.
The government’s defence at the Supreme Court was that many claims at employment tribunals were inherently ill founded and that the employment tribunal system was a private service which should not be underwritten by the tax payer. The Supreme Court rejected both arguments on the basis that there was little evidence to suggest the fee system had deterred weak cases and that pursuing a claim in the tribunal was not a purely private activity, because it can and does benefit society more widely.
What next?
The government has accepted the decision and announced that it will stop taking fees from 26th July 2016. Furthermore, they will begin the process of reimbursing all fees paid since 29 July 2013. It is possible that the government will now try to introduce a revised system with much lower fees. Although the number of claims fell by 70 per cent after the introduction of fees in 2013, there is the possibility that they may rise by a similar number. So what can HR and line managers do to ensure this doesn’t happen in your organisation?
So what can we do?
Improve communication
We can encourage people to raise issues informally. The sooner you can get them to do this the better. The earlier all the stakeholders know of a problem – the easier it is to resolve it. If you don’t have a grievance procedure in place, consider introducing one now. If your managers are uncomfortable having conversations about their own and others’ conduct, then coach and support them to do so.
Review your processes
Another aspect is to check whether your investigation processes and those involved in the process are up to the task? Do you have a clear disciplinary policy and are people in your organisation aware of it? Are investigations carried out by trained, confident and skilful people? Additionally, do they have the rapport and impartiality to be seen as credible by those involved in grievances or disciplinaries? Hearing managers need to understand the principles of natural justice, balance of probability and weight of evidence.
Create a positive working environment
Rather than having these as stand-alone HR initiatives it would be better to have a living and breathing culture where open communication was encouraged. You could take this opportunity to revisit your commitment to your values; ensure that conduct against these values is measured, rewarded and challenged. This should happen everyday in your organisation, not just at appraisals and personal development reviews. Again, this might mean that your managers need coaching and support.
Additional benefits
For organisations that manage to create an open culture there are additional benefits to be had. In addition to avoiding the need to defend costly, time-consuming tribunal claims organisations that look more closely at informal resolution processes, building manager awareness and developing the soft skills and awareness of everyone in the company will improve their ability to innovate and problem solve, increase productivity and efficiency, and reduce the risk of negative conflict and its associated costs.
Based on the perceived increased risk following the Supreme Court’s ruling, you and your management teams could take this opportunity to invest in your people, processes and policies to deliver the results that we are all striving for.