In July 2017, the Supreme Court ruled that tribunal fees were unlawful. The union Unison argued that they made it “virtually impossible or excessively difficult” for some people to gain access to justice, highlighting figures showing a 70 per cent drop in claims since fees were introduced in 2013.

After two failed attempts to get the regime overturned, the union finally succeeded.

With countless cases coming out with an increase in claims on workplace stress, businesses need to take mental health seriously and ensure they understand the risks associated with employees lodging employment tribunal claims.

While Tribunal fees were applicable, claimants would have to pay up to £250 to issue a claim and then up to £1,200 for their claim to be heard by a tribunal. This meant that making a claim was simply out of reach financially for some claimants, and for others, was considered not to be worth the risk. For a third group, those with low-value wages claims, who may have been claiming less than the fees required to issue a claim, pursuit of a claim was simply not financially sensible.

These barriers have now simply disappeared. Claimants do not have to pay anything to bring a claim, hence the sharp rise in numbers doing exactly that. Generally, the majority of employees do not relish the prospect of taking their employer to a tribunal, and there are ways in which employers can address problems in order to avoid claims being issued against them. This does not necessarily mean avoiding taking a robust approach to employees.

Walking on eggshells and trying to avoid upset can sometimes lead to bigger problems in the future. Essentially, by following best practice, treating employees fairly and consistently, managing expectations, and ensuring that processes are followed transparently, employers are more likely to head off problems before they escalate.

It is also important to remember that, although the obvious expense to any employer being taken to a tribunal is the legal fees and the risk of losing in litigation, management and HR time spent in defending claims can also be particularly costly. As such, if employers are in any doubt at all with regard to handling an internal situation correctly, they should not hesitate to obtain legal advice to ensure that they are doing everything that they can to avoid having a claim brought against them.

Are employers at risk?

According to multiple press releases from national law firms yes, employers should prepare for a surge in the number of employees making employment tribunal claims.

What can employers do to protect themselves?

Following the abolition of employment tribunal fees, there is little reason for employees not to bring an employment tribunal claim against their employer if they feel wronged in any way as it will not cost them anything. The best way for employers to minimise the risk of a claim is to ensure that appropriate policies and procedures are in place and are carefully and properly followed. Employers should also look at putting in place training for relevant staff on key areas such as sickness absence with special care on understanding mental health.

Prevention is better than cure and seeking legal advice before it becomes contentious can save future costs and often assists putting the matter to bed.

The Supreme Court has ruled that employment tribunal fees are unlawful, with the Government abolishing them with immediate effect.

What was the ruling before the fee was abolished?

Since July 2013, if employees felt an employer mistreated them and they wanted to make a claim, they had to pay fees depending on that type of claim, this could be either £390 or £1200.

At the time the fee structure deterred many from progressing the claim and even if mistreated walked away. Now though they can put in that claim regardless of value to the severity with no fee structure to hold them back.

The Supreme Court ruled that fees block access to justice and are discriminatory against certain groups like women, who tend to earn less than men and are less likely to be able to afford the fee.

What the ruling means, in summary.

  • Employees who feel treated badly by employers but could not afford to make a claim will no longer face a financial restraint.
  • Employers using less than watertight procedures because employees would find the fees too expensive are now at great risk.
  • Expect more ‘opportunist’ claims. Employees may take a chance on a weak case to get what they want from you.
  • The early conciliation system (this is the process where Acas tries to settle disputes before it becomes a claim) will continue to weed out some of the claims through mediation, but it can’t stop everything.
  • The ruling change applies to all fees and includes the Employment Appeal Tribunal (EAT) fees, employer fees for review of a judgment and so on.
  • The solution is to ensure your workplace decisions and practices are stringent with no room for your staff to raise a complaint.

From a common law personal injury perspective, the key focus is on whether or not the harm suffered was reasonably foreseeable and whether or not the employer took reasonable steps to avoid it. The HSE defines workplace stress as “the adverse reaction people have to excessive pressure or other demands placed on them”.

If any of your employees have suffered from stress at work as a result of working practices such as excessive workload, harassment, bullying or poor working conditions they may be eligible for compensation.

Employees usually have six years to make a claim for work-related stress (3 in Scotland). If they can prove that your employer was responsible, they would be able to claim. It should be noted that employees can claim after they have left the company, providing the claim is within the 6-year time frame, and they can also claim whilst still working for the company. A longer period of time is allowed partly because it can be difficult to come forward and make a claim for stress during what is inescapably a very stressful time. The Courts recognise that it is often impossible to expect someone experiencing or recovering from extreme stress to face making a claim. 

Examples of evidence that an employer may be responsible include:

  • The manager knew you were stressed, but no action was taken.
  • Employees were given an excessive workload without support.
  • Employees were unreasonably refused time off or been put under pressure to work when sick.

Employment tribunals deal with claims brought against employers by employees, typically relating to unfair and wrongful dismissals, discrimination, equal pay, and deductions from wages. Employees must contact Acas at the outset to try to resolve the dispute through early conciliation.

As of November 2018, the latest figures reveal that the number of people bringing a claim since the ruling continues to rise sharply compared with when fees were in place. According to the MoJ, 9,252 single claims were brought against employers from January 2018 to the end of March – more than double the number received between October 2013 and June 2017.

For more information visit: Tribunal CIPD Factsheet