SECTOR FOCUS: LEGAL & FINANCE SECTOR FOCUS


THE LATEST NEWS FROM THE REGION’S LEADING SECTORS


Litigation set to increase after end of


employment tribunal fees


A Supreme Court decision in the case of R (on the application of Unison) v Lord Chancellor has declared that the employment tribunal and employment appeal tribunal fees order 2013 (fees order), which imposes fees for employment tribunals, to be unlawful and prohibitive as it prevents access to justice. The fees order was found to be unlawful under both


domestic and EU law. It has been called a landmark ruling and is perhaps one of the most important judgements in employment law in the last 50 years. As a result of the ruling, from 26 July 2017 tribunal


fees ceased to be payable immediately and any fees previously paid will likely be repaid to claimants who had to pay the issue and hearing fees in order to pursue a claim in the employment tribunal. The Government will likely have to refund in the region of £32m.


What does this mean for employers? First and foremost, it is likely to mean an upturn in litigation. Employers have no doubt been more “commercial” in their decision making in view of the


20 Chamber Profile September/October 2017


dramatic decline in issued claims since fees were introduced in 2013. This, coupled with the mandatory ACAS early conciliation procedure, introduced on 6 May 2014, has seen claims issued drop by around 70%. Employers have, in recent years, been more confident in their decision making in relation to issues that could potentially give rise to litigation, perceiving the risk of an employment tribunal claim to be low as due to the requirement to pay fees. However, while the fees are now scrapped, claimants


are still required to use the mandatory conciliation process and therefore employers will have the opportunity to explore settlement at an early stage before a claim is formally issued. With a recent ruling now giving clarity to the link


between voluntary overtime, standby allowances and call-out payments to the calculation of holiday pay, employers are advised to be mindful that commercial strategies adopted during the last four years may need to be reviewed in the light of the scrapping of tribunal fees.


‘From


26 July 2017 tribunal fees ceased to be payable immediately’


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