Tribunal fees, ACAS and time limits – what about justice?

In July 2013 the Government introduced employment tribunal fees. Since then, there has been a significant drop in the number of cases being brought in the employment tribunal of around 70% according to the House of Commons Justice Committee’s report of Court and Tribunal fees 2016-2017. This can’t be a coincidence.

Whilst the £250 issue fee to submit a claim with an ET1 form may be potentially affordable for some (although not all and the only hope then is fee remission and the thresholds are limited) a £950 hearing fee is a big ask when someone has just lost their job.

Employees should not start a claim with the intention of withdrawing it before the hearing fee becomes payable. This is a risky strategy which could result in a costs order against the employee requiring that he/she pays the employer’s legal fees.

Employees have it tough right now. Not only are there employment tribunal fees to grapple with, there is compulsory ACAS early conciliation to go through before bringing a claim together with a tight time limit of 3 months less a day from the date of dismissal or act of discrimination.

Our clients are not only employees but also employers. Many of our employer client sympathise with the predicament of employees in current times and share our view that things have become too one-sided.

The rationale for employment tribunal fees may well have been to filter out weaker cases and unburden the overcrowded employment tribunal system. We feel though that obstructing access to justice is too high a price to pay especially as it is not even clear that cases without merit are still not being pursued.

What is a realistic affordable amount if indeed there is a place for fees? Should the amount of the issue and hearing fee be based on the employee’s salary?

Query also whether the ACAS early conciliation system is doing its bit to unclog the overburdened tribunal system. Some feel it is simply an extra complication for employees especially since some employers are using any potential irregularity to amount to a non-compliance opening the door to a claim being rejected. Even more tribunal time and resources seem now to be spent dealing with satellite litigation about whether employees have used the correct employer name or missed out a number or letter in a reference. It is important that employees without representation pay close attention to the guidance on submitting an early conciliation notification form carefully.

It may be best not to get us started on the two year service requirement to bring an unfair dismissal claim which leaves many employees in a precarious and vulnerable position for the first two years of employment with limited rights. Our employer clients are generally able to proactively manage performance and deal with any issues within a year if an employee is wrong for the job. It does not feel right to see too many employees with their backs to the wall waiting for two years either to enjoy some job security or to be pushed into unemployment without any justification because employers can.