Brexit may have dominated the headlines in the Employment law sphere as of late, but key changes proposed by the MoJ could once more mean a significant drop in the number of Employment claims brought forward should they be translated into legislation.

Employment Tribunal fees have long been the subject of heated debate in both the business and legal community, their introduction in 2013 welcomed by some and criticised by others concerned for the rights of individuals unable to even afford to lodger their own claim, which appeared at first blush to be a breach of the fundamental right to access the court.

Thanks to the introduction of Employment Tribunal fees, the civil courts saw a reduction in the number of perhaps weaker cases following much criticism that the system was unbalanced in favour of the claimant. However, when the number of cases brought to Tribunal saw a reduction of 80% in the space of three years, it became apparent that the scales had been rebalanced in favour of employers.

On the face of it, fewer spurious claims meant cases with genuine merit could be heard quickly and brought to resolution with little delay. However, fears grew among many that even those with strong claims were unable to pursue them due to the unaffordable fees associated with Employment Tribunals. Indeed, lawyers from 360 Law Group were involved in a number of potentially meritorious cases of discrimination where the claimant simply could not afford to pay the fees.

However, following a ground-breaking case in 2017, the Supreme Court ruled that the level of fees imposed by the government was unlawful; it suggested that the government had acted unconstitutionally in introducing the fees in the first place. Consequently, Employment Tribunals fees were abolished; the Government repaying nearly sixteen million pounds back to claimants who had paid Tribunal fees. The abolishment of Tribunal fees resulted in a sharp rise in claims being brought forward by individuals, with recent figures from April to June 2018 revealing an increase of 165% from the same period in the previous year.

With such a dramatic increase of cases to examine, parties bringing Tribunal claims today face a significant wait to have their cases heard. Last year, the MoJ announced it was launching a recruitment drive to bring in 54 new Employment judges to tackle the rise in cases – but it was clear this would not be the end of the story.

In an attempt to rebalance the scales, the Ministry of Justice announced in November 2018 that Employment Tribunal fees could be reintroduced – although, no plans to do so have been made official. While most people welcomed the outcome in 2017, many Employment lawyers, including those at 360 Law Group, are now waiting for the government to explain how they will put in place a new fee structure that limits the number of cases without acting as a barrier to access to the court, a fundamental right of all citizens. It is important to note here that Legal Aid is rarely available to bring an Employment Tribunal claim.

The Courts & Tribunals Service has published a report on its reform programme which includes details of a digital service that could enable the swift resolution of certain cases through video. It remains to be seen whether this will be a help or a hindrance. In our view, a new system is needed; one that takes into account the challenges of both claimants and employers. The benefits of reducing the number of unfounded claims is clear and enabling stronger cases to be resolved more quickly is to be welcomed, but striking the right balance to ensure individuals are free to take legal action should the situation warrant a claim of this nature is essential in keeping the law accessible to all.

Jason Frater | Employment Lawyer | 360 Business Law

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