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Trends in Employment Tribunals

Meredith Hurst Friday, April 13, 2018

It's 8 months since the Supreme Court decision that Employment Tribunal fees were unlawful. We take a look at the effect this has had, as well as forthcoming deadlines and changes to Employment regulations and statutory requirements.

End of Employment Tribunal Fees

Claimants breathed a collective sigh of relief in July last year when the Supreme Court abolished employment tribunal fees. In 2013, the government introduced fees of up to £1,200 for individuals bringing their employment disputes to the Employment Tribunal. The stated purpose of the introduction of fees was to reduce the burden on employment tribunals and weed out vexatious claims. The fees were supposed to dissuade people with claims that were highly unlikely to succeed from taking their cases to the Employment Tribunal. There was vocal opposition to the fees, arguing that they were disproportionate and would act as a barrier to access to justice t the most vulnerable.

In 2017, the case of R(on the Application of UNISON) v Lord Chancellor (Respondent) [2017] UKSC 51 was appealed in the Supreme Court. The case considered the lawfulness of employment tribunal fees, as well as their harmful effects on access to justice.

The Judgment in R (on the Application of UNISON) v Lord Chancellor (Respondent)

Lord Reed stated:

"The higher fees generally have a disparate impact and in my view it has not been shown that they are justified."

Discrimination cases are more expensive than other types of claim. The perceived wisdom is that because of their complexity, trials generally take longer and they can often involve several witnesses. Another consideration is that women are more likely to pursue sex discrimination claims in the Employment Tribunal than men; therefore the Supreme Court ruled that the fees were indirectly discriminatory on this basis.

The fees were also held to be a disproportionately harsh measure to achieve the government's aim of controlling the quantity of unnecessary Employment Tribunal claims. It was decided that the Employment Tribunal fees were indeed unlawful because they did act as a deterrent to those with genuine grievances.

Effects of the Change

The government suspended the fees, and pledged to refund the fees that claimants had already paid. This amounts to a staggering £30 million since 2013. A refund scheme is now in operation - but what of applications to the Employment Tribunal since the decision?

An individual who has decided to make an Employment Tribunal claim will first commence early conciliation through ACAS. Notably, before theUnisonruling, ACAS was receiving 1,700 employment tribunal notifications per week. This has increased to 2,200 after the ruling. The trend of increasing numbers of Employment Tribunal cases can be attributed largely to this removal of fees. The significant rise in the number of claimants after the Supreme Court ruling seems to confirm that the fees were acting as a deterrent. Removal of the fees has potentially lifted a significant barrier to access to justice in the employment law context. 

Other Changes to Employment Tribunals

Employment Tribunals calculate the basic award in unfair dismissal cases, and redundancy payments, with reference to a week's pay which is capped. With effect from6 April 2018the cap on a week's pay increased from £489.00 to £508.00.The cap on unfair dismissal compensation also increased from £80,541 to £83,682.

National Living Wage and National Minimum Wage Rises

Another Employment Law trend is a general rise in minimum wages across different age demographics. The National Living Wage will rise from £7.50 to £7.83 per hour for workers over the age of 25. There are also increases in the national minimum wage for workers in other age categories: those between ages 21 and 25 will see the minimum wage rise from £7.05 to £7.38 per hour. Those between 18 and 21 will see an increase from £5.60 to £5.90 per hour. For workers aged 16 and 17 the minimum wage will increase from £4.05 to £4.20 per hour. Apprentices will see their minimum wage rise from £3.50 to £3.70 per hour. All of these changes will come into force on1 April 2018.

Gender Pay Gap Reporting

A trend in employment law that has made headlines recently is the increasing number of companies complying with the requirement for employers to publish their gender wage gap information on the government's website. This rise in information has occurred because deadlines for publication are approaching. Public Sector employers were required to publish their gender wage gap information by30 March 2018. Private sector businesses with over 200 employees had until4 April 2018to publish their gender pay gap and we are starting to see some of the results with are rather sobering, although it appears that Royal Mail bucks the trend with women overall receiving higher pay than their male counterparts.

Rises in Statutory Pay

Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP), Statutory Shared Parental Pay (ShPP) and Statutory Adoption Pay (SAP) increased from £140.98 to £145.18 per week. These changes came into force from1 April 2018. Statutory Sick Pay (SSP) also rose to £92.05 per week.

General Data Protection Regulation

A new EU Data Regulation will come into force on25 May 2018. Among other effects, the regulation will place higher standards on companies to obtain the positive consent of customers to allow their personal data to be processed, and stricter penalties for institutions that violate data protection laws. We intend to provide further updates about this as and when we have further news.

For advice about an employment tribunal claim, or to discuss how any of the forthcoming changes will affect your business, get in touch with us!

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