Unison’s recent challenge to the lawfulness of the Tribunal fees failed on the basis that the claim was premature and that there was no firm evidence to support its findings. The Court expressed said that had Unison's suggestions been proven, then this would be of serious concern.
The Government has now published its statistics on Tribunal claims presented in the first complete quarter since the new fees were introduced. Whilst there is evidence that the true figure may be distorted by the sheer number of claims in the remission system, the figures show a dramatic reduction in claims.
There was a reduction of over 70% in the number of claims presented in September to December 2013 compared with the same quarter of 2012. Whilst, this may appear at first to be good news for employers, there are some additional rules which may increase the financial burden.
Claimants can still apply for remission (so that they don't have to pay the fee) if they meet the strict criteria, but there appears to be a backlog of claims. This has resulted in employers not knowing they have a claim against them for some months after it is presented to employment tribunal. This makes management of the potential claim more tricky if there is an additional delay and key witnesses are lost from the business or the additional passage of time distorts recollections. Further, a successful Claimant can apply for a costs order on conclusion of a matter for the Tribunal fees as a matter of course which could add up to £1,200 to the award or cost of any settlement.
After 6th April 2014, ACAS will be introducing a mandatory pre-claim conciliation procedure where the Claimant must have a certificate to confirm they have participated in conciliation before a claim can be presented. This will impact on the time limits for presentation of the claim which may be extended by up to six weeks. However, the rules are complex in this area. The Tribunal will also have the power to order that the losing employer pay a financial penalty of up to £5,000 if the case has aggravating features. This penalty goes to the Secretary of State and not the employee. There is no definition of what “aggravating features” may amount to so it will be a case of waiting and seeing how this new area of law develops.
Consultant Solicitor/Tribunal Judge
Posted on Monday, 24th March 2014