The Supreme Court’s ruling that Tribunal fees are unlawful has caused much speculation about possible impact, although whether the more eye-catching forecasts of a “tsunami of claims” will happen remains to be seen. Here, B3sixty Director, Clive Bane summarises what the various experts are forecasting.
The most obvious point is that Tribunal Claims are likely to rise – having fallen by over 70% since the introduction of fees in 2013 this is surely inevitable. This has implications for the resources available to the Tribunal Service to deal with the increased volume, as it will no doubt have been “downsized” over the past four years.
An increase in Claims will also see greater pressure on Acas and its mandatory conciliation service (introduced in 2013 as a further means of reducing the numbers of claims reaching Tribunal). This could adversely affect Acas settlement rates thereby further increasing pressure on the Tribunal Service). As a consequence there could be the return of lengthy waiting times for hearings.
It may also see an increase in the use of the less well-known procedure of judicial assessment introduced in 2016. Based on mutual consent of both parties it allows a judge sitting on his or her own to make an initial assessment as to the merits of the case.
Those who had paid fees will be expecting repayment, and the Ministry of Justice immediately committed to this – although given the point about resources it may be some time to clear the backlog. What is less certain is whether employers who were ordered to reimburse fees paid by claimants following the loss of a case will also be reimbursed.
There will also no doubt be attempts to bring “out–of-time” Claims using the argument that fees had previously prevented some individuals from making a claim due to the cost. Some commentators see discrimination Claims as having the best chance of success where the “just and equitable” test is applied.
There is also the possibility that potential Claimants who believe they were unlawfully denied justice will sue the government for losses caused from being prevented from bringing a claim.
Many commentators have focused on which type of claims is most likely to increase. Top of the list is holiday pay; equal pay; maternity discrimination; discriminatory dress codes; claims form younger workers; low value claims; and multiple claims – all areas where evidence has showed that potential claimants have been disproportionately deterred by the existence of fees.
Rather more speculatively, it has been claimed that the risk – both financial and reputational – of claims will be increased in organisations that have relied on fees as a means of suppressing employment relations issues, rather than using the circumstances to improve their internal culture, policies and procedures.
Finally, looking at this issue from the other end of the telescope it may be that the Government will bring forward a more proportionate fees scheme into law (the Supreme Court judgment was that fees were wrongly introduced through secondary legislation). However this would take time and effort on the Government’s part and given its fragile majority would have no certainty of success.