No Fees, No Worries?

It created headlines when in July this year the Supreme Court ruled in R v Lord Chancellor that the fees introduced in 2013 for bringing a case at an employment tribunal were ‘unlawful’. Fees could be from £160 up to £1200. The government had said that they were brought in as part of an effort to eliminate malicious or weak cases. The Supreme Court found, however, that the fees prevented access to justice for claimants and would often render any compensation element futile. Also, it said that claimants on a low income were unable to afford the fees.

There have been many people arguing against the introduction of tribunal fees, including union representatives and employment solicitors. For many this decision is a win for justice. From 26th July 2017, no claimant is required to pay a fee to bring a case to the employment tribunal , and those that already have paid a fee have been reassured that it will be refunded in time. Whatever your opinion on tribunal fees, scrapping them is going to have an impact on both employees and employers.

The introduction of these fees had a dramatic bearing on the caseload of the employment tribunal and government figures showed a 79% drop in cases brought to an employment tribunal over 3 years. Having worked at the employment tribunal during one of its busiest times during the recession and before the fees, I found this statistic particularly interesting. Now that it is potentially free to bring a claim, claimants may not be so reticent to do so. Paul McFarlane (Chair of the Employment Lawyers Association) said, “Once fees are scrapped, it is likely there will be a significant rise in the number of claims being brought.”

So, what does this mean for employees?

You may not need to pay anything to bring a claim – though you may choose to pay for a solicitor or barrister. However, if there is a sudden increase in caseload then there is also a greater probability of lengthier delays between starting the claim process and getting to a hearing.

What could this mean for employers?

There is an increased chance that if you have a disgruntled employee or if the correct ACAS procedures have not been followed, your organisation may be brought to an employment tribunal. Since 2013 there has been a smaller chance of repercussions as the likelihood of someone bringing a claim – let alone seeing a tribunal case through to the end - was a lot lower.

3 tips on avoiding a claim being brought in future:
1. Open communication with staff and between colleagues
• Great communication is essentially the greatest tool for any organisation to avoid unnecessary conflict and the cost and stress of a case.
• It allows for concerns to be aired and dealt with before they become big issues.

2. Clear and consistent HR policies and procedures
• Many organisations tell me how difficult it can be to keep up to date with the latest changes in the legal requirements for an organisation, but it certainly pays to be as aware as possible of what is expected.
• For those organisations who do not have their own internal HR department, there are many independent HR consultants out there or business advice phonelines who can offer support in this area.

3. Be aware and proactive in maintaining standards of behaviour
• It pays to ensure that people in management are self-aware and know when to change a behaviour that is causing concern, or at least to have others in the organisation around who will keep them accountable about their potential blind spots.
• Tackle staff behaviours that are having a negative impact on the organisation before they have a knock-on effect on their colleagues or their own career.

It is worth bearing in mind that though a tribunal may provide a sense of ‘justice’, the course of bringing a claim is often stressful, financially impactful and can take an excessive amount of time and energy to prepare for. Where there is a chance that a situation may end up at the employment tribunal, both employee and employer would likely benefit more from trying to resolve a situation first.

Even if a situation does not end up in the courtroom, it is likely that you will have been around, or had to deal with, conflict at some point. Whether you are personally involved in the dispute or if you have had to oversee the matter at a management level, you will be aware of the time it can take to sort – if resolution is even achieved by the end. The time spent dealing with conflict can be great and it is often time that could be better spent doing other elements of your role.

When concerns become disputes or where communication becomes difficult, it may be time to think outside the traditional process. Alternative dispute resolution (ADR) methods such as the process of mediation can limit the time, financial cost and stress that is a natural side-effect of unresolved conflict. Mediation is, in its simplest form, a conversation between people, facilitated by a neutral third party. The process enables people to lower their guard, engage in meaningful discussions and think through ways forward that can have a lasting impact on them and their workplace.

If you feel like there is a situation which may lead to a tribunal, or if there are any employment or workplace disputes that may benefit from having a neutral third party involved, please get in contact by emailing emma.jenkings@mosaicmediation.co.uk or get in touch through the Contact page .