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The Twitter rumours amongst employment law enthusiasts started early on 26 July 2017. Dave Prentis, the General Secretary of UNISON had been spotted outside the Supreme Court to hear the outcome of the decision in R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51, otherwise known as the decision on the lawfulness of Employment Tribunal fees.
Those who felt that this boded well for UNISON’s appeal were proved correct. The Supreme Court, in a powerful judgement, held that the Tribunal fees regime was unlawful for a number of reasons including that it prevented access to justice in breach of common law and constitutional rights, and was indirectly discriminatory under section 19 of the Equality Act 2010.
The fees order was quashed with immediate effect and the administrative mechanism of the tribunal sprang into action to ensure that the ET1 form was amended to remove fees requirements and any Claimant who wanted to issue a claim could do so without paying up to £250.
But unravelling the web of the full fees regime will take time. Claimants and Respondents will need to be refunded, and any out-of-time claims brought by Claimants who could not afford the fees will need to be dealt with. Claims dropped by 66-70% after the introduction of fees in July 2013, leading to reductions in tribunal administrative staff and judges – these will doubtless need to be boosted to deal with what many are predicting will be an inevitable rise in the number of claims.
But can we expect the number of claims to rise to pre-fees levels? I think it is unlikely. While some rise is to be expected, the Acas early conciliation regime which was introduced in May 2014 is likely to resolve a number of low value claims at conciliation stage. In my experience, early conciliation was often used as a means of telling whether a disgruntled employee was “serious” about bringing a claim. Now, it will become a crucial stage in avoiding the costs associated with employment tribunal litigation.
The impact upon employers is likely to vary hugely depending on sector and number of employees. Employers with large workforces of low-paid employees including industrial or retail sectors are likely to feel the impact. So too will companies in the gig-economy who are seeing something of a revolution by the “self-employed” people on which they rely claiming employee or worker status. Previously these had mostly been union-funded test cases, but there will now be nothing to stop individuals from submitting such claims themselves. But, by contrast, employees in the financial services sector were always less likely to be deterred by a fee of £250, and there may not be a significant rise in claims from this sector.
Although the Supreme Court did not hold that fees are wrong per se (only that the level of fees was unaffordable), the prospect of the government having the parliamentary time, majority or appetite to introduce a new lower fees regime looks very slim. So, for the foreseeable future, we find ourselves scanning the horizon for the avalanche of ET2 forms (Notices of Claim for those who are not employment tribunal geeks) which may never come.
30 August 2017
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