Businesses are advised to examine their HR policies and procedures to make sure they are compliant following the recent Supreme Court ruling to abolish tribunal fees.
The landmark decision has prompted concerns of a surge of tribunal applications from employees who no longer have to pay tribunal fees of up to £1,200. It was found that these were a huge expense for many, prevented access to justice and were discriminatory against women as those bringing discrimination claims incurring the highest fees were predominantly female.
Employers should brace themselves for a rise in employment tribunal claims and should make sure they are prepared. We recommend that HR managers review all staff handbooks and procedures to ensure that they are fully compliant with employment law to help avoid potential claims. Now is the time to train your staff in dealing with disciplinaries and grievances because if they get it wrong – they are much more likely to have expensive tribunal claims on their hands.
Following the introduction of fees in 2013, there was a massive drop in tribunal claims of around 70%, particularly those of a low value, for claimants who were unable to afford the fees and ineligible for fee remission, or who were unaware of the possibility of fee remission.
The three-month time limit to make employment claims remains unchanged but employers may see late claims being allowed to proceed. In a recent decision a claim was allowed to proceed, having initially been struck out because the claimant failed to pay the issue fee. Employers should not assume that claims which are technically out of time will not be allowed to proceed.
It is far better to prevent a claim occurring in the first place – particularly one based on discrimination as the two years’ service requirement for unfair dismissal claims does not apply and compensation for discrimination for successful claimants is uncapped. Also, legal fees are rarely recoverable in the Employment Tribunal, so employers will have to foot the bill for legal fees even if the claim is defeated.
Another point is that when a claim is brought for, say unfair dismissal, the Tribunal can award up to four weeks’ pay where a compliant statement of Particulars of Employment has not been given to the employee.
With this in mind, should issues arise, companies are advised to resolve them before a claim is brought wherever possible. This can be done internally, for example through grievance procedures or informal discussions or workplace mediation.
Employers are also advised to seriously consider settlement during the ACAS Early Conciliation period. Both routes are quicker, more cost effective and less stressful for everyone involved. Tribunals are undoubtedly expensive and stressful for all concerned.
Crucially, it is a very good idea to enlist the support and guidance of a legal practice with an established reputation in employment law.
Barry Warne heads the employment team at hlw Keeble Hawson, of Sheffield, Leeds and Doncaster. Among his areas of specialism are TUPE, Employment Tribunal advocacy and Executive Severances