2017 has represented a sea change in the Employment Tribunal system.

From the overturning of Tribunal fees to the introduction of an online database we set out below the practical implications litigating parties should be mindful of moving forward.

Fees

In July 2017 the Supreme Court held that the Employment Tribunal Fees Regime was unlawful.

Employment Tribunals immediately ceased requiring the payment of fees before accepting future claims. However they were left with the administrative difficulty of how to deal with fees that had been paid by claimants since 2013 with an estimated bill of £33 million.

This month they have devised a system.

Refunds:

On 16 November 2017 the Refund Scheme opened to everybody to apply for a refund if they paid fees in respect of a tribunal claim (or appeal) since fees were introduced in July 2013.

In sum all fees will be repaid along with interest of 0.5% from the date of payment to the refund date.

Anyone who paid a fee can apply for a refund online or apply by post or email using the following forms:

Form 1-C if you paid the fees and made the claim

Form 3-S if you paid the fees for someone else to make the claim

Form 2-R if the Tribunal ordered you to pay the fees of someone who brought a claim against you.

However employers should understand that if they reimbursed the fee to the claimant under a private settlement, it is the claimant, not the respondent, who is eligible for the refund.

Practical Implications:

The obvious expectation is that the abolition of fees will lead to an increase in the number of Tribunal claims. However, we do not expect these to necessarily rise to pre-2013 levels.

The cap at one year’s pay for unfair dismissal claims, the increase in continuous service from one to two years and the introduction of ACAS early conciliation have all also contributed to the reduction in claims since 2013.

So long as employers conduct themselves sensibly, fairly and maintain robust policies and procedures this development should not cause considerable concern.

Furthermore the Tribunal rules provide (admittedly limited) mechanisms to strike out claims with no reasonable prospect of success and Tribunals maintain the power to order costs against vexatious and unreasonable claimants.

One issue employers should be mindful of is that claimants may now be seeking to reinstate claims (and appeals) which were previously dismissed for non-payment of fees. We are aware that the Employment Appeal Tribunal has been contacting appellants who did not pay the fee on lodging their appeal to enquire if they now wish to revive their appeal.

Furthermore individuals who were previously deterred by the fees regime from making a claim at all may seek to argue that there should be an extension of time for them now to bring that claim. Time will tell, although not too much time. Claimants will need to issue their claims as soon as possible and there is an obvious argument to be run that any claim issued three months after the date that the fees were overturned is now out of time in any event. 

Online database

A rather less well publicised development which took place in February 2017 was the introduction of an online database of employment tribunal decisions.

Whilst judgments have always been a public record, previously interested parties had to travel to offices in Bury St Edmunds to read the documents. As such claimants and witnesses could rest reasonably assured that future employers would be none the wiser of previous litigation. However, the new online database is easily accessed via google with the implications that anyone researching an individual can quickly unearth information about any employment proceedings in which they have been involved.

The database will include information about preliminary hearings, even where the case was settled and details of claims that are not upheld. The published judgments may contain personal and confidential information, such as comments about the credibility of a witness and commercial information about an employer. This could have serious implications for anyone involved in employment proceedings.

The obvious risks include reputational damage, victimisation and invasion of privacy.  Employers increasingly carry out google searches against prospective candidates as part of their recruitment process in order to, amongst other things, verify the contents of their CV. Now this exercise can also reveal their record of litigation.  This may deter some litigants from seeking reparation. Similarly, the danger of adverse publicity for employers involved in litigation is now also much greater.

How parties can avoid the publication:

One way in which parties can try and avoid the sordid details of their dispute being on google is to seek an only oral judgment as this should lead to the online judgment simply specifying the outcome. The ultimate decision, however, rests with the judge who may be unwilling to oblige.

Another option for a concerned party is to seek an anonymity order. It is expected that the increased accessibility of Employment Tribunal judgments may give rise to a greater willingness on the part of the Tribunal to grant anonymity orders. Rule 50 of the Employment Tribunal Rules grants wide powers for Employment Tribunals to anonymise the identity of specified parties, witnesses and others referred to in Employment proceedings. Traditionally the courts have been cautious in permitting such orders and have tended to prioritise the importance of open justice.

However this likely shift towards more anonymity orders should be seen in context. The default position remains that judgments will be published in full, including the names of parties.

This database clearly has the potential to significantly change the attitude to employment litigation. Claimants may be more wary of the reputational risks before initiating employment proceedings and employers may be encouraged to reach early settlement. Furthermore employers may find their employees are much more reluctant to act as witnesses and even to assist and engage in internal processes for fear of future litigation.

With this backdrop it is hardly surprising that the Tribunal system is currently experiencing a considerable backlog of claims. Be warned, there are many instances of claims being served on respondents some six months after dismissal…so don’t pop the champagne cork just because three months has elapsed.


Lucy McLynn photo

Lucy McLynn

Partner and Head of Employment

T
+44(0)20 7551 7806

E
l.mclynn@bwbllp.com
View full information about Lucy McLynn
Rachel Mathieson photo

Rachel Mathieson

Solicitor

T
+44(0)20 7551 7608

E
r.mathieson@bwbllp.com
View full information about Rachel Mathieson

Posted on 01/12/2017 in Legal Updates

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