In July 2017 the Supreme Court handed down a landmark judgement that employment tribunal fees were unlawful under both domestic and EU law. It decided that fees prevented access to justice, were indirectly discriminatory under the Equality Act, and were contrary to EU law.
Since then we have seen a substantial increase in the number of claims. Unsurprisingly, as well as genuine unfair dismissal and discrimination claims, the inevitable low value and speculative claims have also started to flood in.
The employment tribunals service has now released its quarterly figures for October to December 2017. In respect of single claims there has been an increase of 90%. Employment tribunal multiple cases increased by 467%. Having made significant cuts to staff and premises after the fee-induced fall in cases, the tribunals are struggling to cope with the current dramatic increase, especially as no-one was expecting the Supreme Court’s decision. This has an impact on the disposal of cases, with some tribunal centres listing cases for hearings into 2019.
Delays in hearing cases have a significant impact on both parties involved. Memories fade, witnesses move on and can be hard to track down or become reluctant to appear. We are yet to find out what action, if any, the government will take to address the stress on the tribunal system and whether the increase in cases will continue.
There has also been an impact on businesses and how they make decisions relating to employees. They have had several years where the risks of an employee submitting a tribunal claim were remote. This allowed them to make more robust commercial decisions regarding staffing issues. The landscape has now changed and managers must return to careful consideration of the likelihood of winning any resultant tribunal. After such a long period of security some managers may find it frustrating that they are now receiving more cautious advice from their HR team.
HR teams must achieve a difficult balancing act of continuing to give commercial, robust advice while at the same time protecting the business. HR teams will need to ensure that when assisting the business to undertake processes such as disciplinaries, grievances and dismissals, that the procedure is very carefully followed, as any mistakes are likely to be used in future tribunal claims. This will be a challenging time for HR professionals as they will also need to upskill managers in processes to ensure they do not inadvertently make mistakes.
Sarah Dillon is a director at ESP Law, provider of the HR Legal Service