The Employment Tribunals were first established as Industrial Tribunals in the 1970’s. The original aim was to establish a forum that would enable users to obtain a speedy solution to their industrial disputes free of charge and legal complexities. At that time industrial law was in its infancy but the Industrial Relations Act 1971 gave some protection against unfair dismissal and the right to join trade unions, but also prohibited strikes. 1970 also saw the introduction of an Equal Pay Act to equalise the pay between men and women, which is still a work in progress.
Increasing legal complexity
Over the intervening years employment law became increasingly complicated as more layers of legislation were introduced. The resulting complicated factual and legal scenarios often necessitated the input of solicitors or barristers to interpret and debate the merits of each individual case.
If a negotiated settlement cannot be reached then legal representation is normally desirable at the Tribunals except perhaps in the most straightforward of cases.
Most litigants in person would be advised to only elect self-representation in the simplest of claims such as a failure to pay notice or wages. Similarly an employer would be well advised to take legal advice and seek representation in any factually complex case.
Tribunals remained free of charge
Up until July 2013, in spite of the increasing complexity of tribunal proceedings, claimants could submit a tribunal claim entirely free of charge. ACAS also provided free assistance to the parties to enable them to reach a negotiated settlement. If the case was then settled via ACAS there could be no cost at all to the unrepresented parties. If the case went to hearing and the employee claimant did not have legal expenses insurance and could not afford to instruct counsel then he or she would need to represent themselves.
The introduction of Fees
In July 2013 fees were introduced for all Employment Tribunal and Employment Appeal Tribunal claims by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893). The stated aim was to reduce the burden on UK tax payers, prohibit vexatious claims and encourage negotiated settlements.
It was perhaps unfortunate that no consideration was given to those individuals who had legitimate claims but having lost their only source of income, or being in receipt of a low income, could not afford to pay a Tribunal Fee. It would seem inevitable that the fee regime prevented meritorious claims being pursued due to lack of finances.
Although it was possible for those on low incomes to apply for fee remission the on line computer system was cumbersome and difficult to apply.
The Fee Regime resulted in a reduction of Tribunal claims of 70% year on year. Whilst this did reduce the burden on the tax payer, there is insufficient evidence to suggest disputes were settled before claims were issued. More commonly employers would wait to see whether a dissatisfied employee issued proceedings. If the employee could not afford the issue fee, then the potential problem evaporated.
In 2013 the Trade Union Unison took immediately and pursued a claim for Judicial Review in the High Court. Unison referred to statistics showing the impact of tribunal fees on the number of claims submitted, but their application was unsuccessful on the grounds that the application was premature and Unison should seek further evidence.
As the number of tribunal applications continued to plummet Unison took their application to the Court of Appeal in 2014- but that appeal was stayed pending a further determination by the High Court. In December 2014 the second judicial application in the High Court was unsuccessful.
In 2015 the Court of Appeal rejected both appeals against the High Court decisions but Unison was granted permission to appeal to the Supreme Court in February 2016.
Finally on the 26 July 2017 the Supreme Court ruled in Unison’s favour and agreed that the introduction of tribunal fees created a barrier to justice, especially for women, who statistically receive a lower salary than men.
As a result of the Supreme Court’s ruling that the introduction of fees was unlawful a claimant no longer has to pay a fee to submit a claim online or at a Tribunal Office. Additionally all those who have paid fees since 2013 will receive a full refund. There is no indication of how long the claimants, or the affected respondents, will need to wait to receive their money.
It is widely speculated that the removal of the fee regime will result in many more applications to the Employment Tribunals. But in 2012 there were other changes that may have impacted on the total number of Tribunal claims.
Before 2012 employees only needed to have 12 months service in order to bring a claim for unfair dismissal. Since 6 June 2012 all employees have needed 24 months continuous service.
The claims that can proceed with minimal service are all those relating to any form automatic unfair dismissal or discrimination or in relation to “whistle blowing” or TUPE transfers.
Litigants in Person
The other impediment to pursuing a tribunal claim for those on lower incomes who do not have legal expenses insurance and cannot afford lawyers’ fees, is the daunting prospect of representing themselves. It may be that, if early conciliation through ACAS remains mandatory, individuals will try to resolve their dispute amicably, and if that fails, move on to alternative employment.
If individuals persist so that employers need to instruct solicitors, they may succeed in obtaining some compensation, or alternatively face a tribunal hearing. The braver individuals may persist undeterred and represent themselves, but the less resilient may withdraw their claims. Although Tribunal fees are unlawful wasted costs may still be awarded and so care should be taken not to withdraw a claim very near to the final Hearing date.
Employers defending a claim against an unrepresented litigant in person face greater difficulties. Their lawyers need to ensure all interaction is measured so that they do not take unfair advantage of the unrepresented party’s lack of knowledge, which would amount to a breach of their regulating body’s rules.
Statistics are released quarterly and it is too soon to tell from these whether a greater number of claims will be submitted. The end of year results are released in early April 2017, that will be 8 months since the Supreme Court outlawed Tribunal fees.
If individuals issue proceedings for meritorious claims then Employers would be well advised to seek legal advice and early settlement. And if the claim is vexatious, then the Employer may decide to defend the claim.
Recovery of costs
Although costs are not routinely awarded in the Tribunals, if there is a strong indication that the claim should never have been issued, then there is a greater prospect of receiving a costs order- although that may be a pyrrhic victory if the individual has no funds and no assets.