Employment Tribunal fees ruled unlawful - what does this mean for employers?

The HR news has been full of the fact that the Supreme Court ruled in July 2017 that the fees charged by the Government for employees and workers to bring claims against employers was unlawful. Not only unlawful, but also unconstitutional - denying working people access to justice. £32m has been paid in fees over the last four years and the Government is now required to pay that back. The Government is considering how to do that and a decision is expected in September 2017.

One question we had been asking ourselves, was what would happen to all those claims that were not heard over the last four years? Well that question has now been answered in part and it looks likely that claims which were struck out during the last four years will be reinstated. This includes appeals that were not taken up to the EAT because of the fees issue. A particular case that has been given the go-ahead to proceed is one brought by Miss Dhami, who tried to bring a claim against Tesco for disability and age discrimination. Her claim was filed within the three month time limit, but her request for assistance with the fees was rejected. Miss Dhami did file a second claim against Tesco but as it was presented out of time the Tribunal agreed with Tesco that it should refuse to hear her claim. The claim can now be heard because of the particular way it has been worded since the Supreme Court ruling. This does not mean however that every claim that was not brought over the last four years will proceed. Decisions will be made on a case by case basis in line with normal Employment Tribunal rules, but some employers may be required to defend claims that are up to four years old. It will be interesting to see how the Tribunals deal with such claims.

Going forward, it is worth remembering that claims to an Employment Tribunal must be brought within three months of the date of termination of employment. If ACAS early conciliation is taken up, the time period is halted while early conciliation takes place. The conciliation period is normally 28 days, which can be extended for a further 14 days if both parties agree. The clock starts ticking towards the end of the three month time period once the early conciliation certificate has been issued.

So who can bring a claim and what will it all mean for your business?

Not everyone can bring a claim against their employer. To bring a claim for unfair dismissal the employee has to have been employed for two years. Discrimination claims can be brought from day one of employment, so there is no qualifying service for this type of claim. In some cases, the two different types of claim are linked together to enable a claimant to put their unfair dismissal claim before the Employment Tribunal.

We have always recommended a three step process for all dismissals, regardless of the length of service. This is to reduce the risk of a 25% uplift in any award for a successful discrimination claim where the three step process has not been followed. The removal of Tribunal fees will now make this three step process more important where there is any risk of an ex-employee bringing a two-fold claim, i.e. for discrimination and unfair dismissal (even without the two years service for unfair dismissal). The three step process consists of:

  1. Inviting the individual to a meeting and laying out the reasons for considering dismissal
  2. Holding the meeting and listening to what the individual has to say
  3. Confirming the decision in writing and if it was dismissal, allowing the right of appeal.

The documents concerned in this process will have to be written in a certain way to protect the organisation. If you are in this situation and need help writing the letters and conducting the meeting, give the friendly CHaRM team a call on 0115 984 3119.

The importance of training Managers

Here at CHaRM we have always said that it is essential that managers understand their legal obligations in managing staff. This includes having a basic understanding of contract law and how their actions can damage the Company if they act unlawfully. In light of another recent case law ruling which found against an employer who did not follow a correct procedure for dismissal, we feel even more strongly that management training is essential. In that case, the ex-employee who was rightly dismissed for her actions, won her claim for unfair dismissal because proper processes were not followed. Legal commentary following the case said that having basic employment policies in place is essential, but of itself that is not sufficient. "Those who apply the policies must undersand the law that sits behind the policies and understand how they should act." That is why training for line managers is so important.

Our on-line course booking page gives details of our next Employment Law for Line Managers course on 27 September 2017. Don't run the risk of letting your managers cost you money because they don't know how to follow basic procedures.

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