Back in July of this year, the Supreme Court found that the high tribunal fees of recent years were unlawful. The fees were considered to be blocking access to justice and, in addition to removing the fees for future cases, the government also pledged repayment of up to £32m to claimants who were able to take their cases forward. Since the Supreme Court decision was made public in July, there have been widespread fears about the torrent of tribunal cases that could follow in the wake of the removal of the financial barrier. While numbers will undoubtedly increase in comparison to the years in which the fees were in play, whether this is disproportionate – or just indicative of the number of cases we should have seen all along – remains to be seen.
Where do the vulnerabilities lie?
With – or without – the high fees attached to tribunal cases there are some areas of vulnerability for employers that have become of increasing concern. In the light of the removal of fees, they could present a serious risk.
Sex and maternity discrimination
Government commissioned research found that 75% of new mothers and pregnant women experience discrimination at work. One in nine of those women may even lose their jobs because of this discrimination. These figures have risen significantly since 2005 when just 45% of women said they had experienced this kind of discrimination. With fees to consider, a tribunal case on these grounds would have been out of the question for many, not just because of the financial pressure but the stress such a situation could cause to a pregnancy. As the fees have been lifted that’s no longer the case.
Equal pay claims
Increased demands for transparency on the issue of pay have been supported by the requirement for gender pay gap reporting, which came into effect in April of this year. Now, those businesses with a workforce of more than 250 must publish information on the differences between what women are paid and what men are paid. Given the removal of fees, and the incentive of a pay discrepancy, there is an increased likelihood that more equal pay claims will become the norm.
Short service and low value claims
High tribunal fees meant that employees balancing the logic of making a claim with a low value often opted not to. As a result, over the past couple of years, employers have increasingly been able to risk a dismissal that - without the fee barrier in place- may have seemed unwise, as it was unlikely that the employee would do anything about it. Now, however, it’s expected that there will be an increase in these claims where the fee would previously have been a deterrent due to the low value. Employees are also more likely to make claims even if they have under two years service, and to be more inclined to look at discrimination or whistleblowing claims, no matter how short the time served.
Union backed claims
Unionised employees are better supported in term of legal advice and the removal of fees will make it cheaper for unions to make multiple claims.