Introduction

For trade unions and their members, bringing a claim in an employment tribunal is a last resort when a negotiated agreement has failed. The benefits of a successful claim can be great, not just for the individual member, but for others affected by the same issue. The knock-on effect on morale, and union membership, can be extremely positive. But a failed claim may have the opposite effect and also leaves no room for further negotiation. As such, it is important for union reps to have as much information as possible when advising members with a potential tribunal claim and in deciding its chances of success.

This booklet is designed for union reps and their members to explain the employment tribunal system. It is intended to provide information to help in deciding whether to proceed with a claim, how to prepare for it and where to get help.

It does not cover personal injury claims — except where a personal injury (usually psychiatric injury) results from discrimination under the Equality Act 2010, which can be brought in the employment tribunal. If the employer is in breach of any contractual term while the employee is still employed, the claim must go to the civil courts — the County Court or High Court .

The employment tribunal service discussed in this booklet applies in England, Wales and Scotland. Northern Ireland has a different system of industrial tribunals which hear nearly all cases involving employment disputes. It also has the Fair Employment Tribunal which hears cases to do with unlawful political or religious discrimination.

Background

Employment tribunals, originally called industrial tribunals, were created in 1964 as relatively informal bodies to hear employers’ appeals against industrial training levies.

They have since become significantly more complex and formal as they have adapted to deal with an increasing volume of employment legislation, and they are now governed by extensive legal rules.

Employment tribunals remain distinct from the civil courts (county court and High Court), although both systems fall under the responsibility of the Ministry of Justice. Tribunals retain the following characteristics that differentiate them:

• it is almost invariably the worker or employee who brings the claim. There are a very few exceptions where an employer can claim;

• there are generally no costs awarded in a tribunal — each party pays its own legal costs regardless of whether the claim succeeds;

• there is still a panel of three, consisting of two lay members (non-legally qualified representatives — one of each from panels of employees and employers) and a judge, who hear certain types of claim, including discrimination claims;

• they tend to be less formal;

• the parties can be represented by a lay person if they wish; and

• tribunals are not bound by legal rules on the admissibility of evidence.

The importance of case law

While Parliament decides the legal rights of individuals by making legislation — Acts of Parliament such as the Employment Rights Act 1996 or secondary legislation, known as Statutory Instruments, such as the Working Time Regulations 1998 — it is case law which plays a vital role in the development of those rights. Case law is the law made by judges when interpreting the legislation and applying it to the facts of the cases that appear before them. As such, case law plays a central role in the employment tribunal.

Tribunal fees

In 2013, the Conservative government introduced fees for the first time in employment tribunals and the Employment Appeal Tribunal (EAT). The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 SI 2013/1893 came into force on 29 July 2013 and required all claimants bringing a claim to pay a fee or apply for remission of the fee. Employment tribunals were forced to reject any claim that was not accompanied by payment or an application for remission.

Under the scheme, the claimant had to pay an initial fee simply to submit their claim (either £160 or £250, depending on the type of claim) and a further £230 or £950 if they wanted to proceed to a hearing. This meant that a claim for unpaid wages could cost £390, regardless of the sum being recovered, and an unfair dismissal or discrimination claim could cost £1,200. There were also fees for pursuing an appeal.

Unsurprisingly, there was a dramatic fall in the number of claims of around 66%-70%, as thousands of people could no longer afford to pursue them. A government review of tribunal fees published in January 2017 found that between 3,000 and 8,000 people had abandoned genuine claims after failing to resolve them through Acas Early Conciliation (see pages 21-22) because they could not pay the fee. Low value claims such as unpaid wages and unpaid annual leave, and those with no financial remedy, such as entitlement to breaks, were the most affected.

Trade unions were at the forefront of concerted criticism and campaigning against tribunal fees, resulting in a successful legal challenge by public services union UNISON. Tribunal fees were abolished on 26 July 2017 in the landmark judgment of UNISON v The Lord Chancellor [2017] UKSC 51. The Supreme Court ruled that fees impeded the right to access justice and the government was obliged to end the employment tribunal fees scheme with immediate effect.

In its judgment, the Supreme Court noted that employment rights do not just benefit individual employees but are in the public interest because the right to bring a claim must exist if the employment relationship is to be based on respect for those rights. Breaches of those rights can only be resolved by negotiation or mediation if they are backed up by the ability to bring a claim — otherwise the party in the stronger bargaining position will always prevail.

Following the Supreme Court ruling, the government set up the Employment Tribunal Fee Refund Scheme so that claimants could recover the fees they had paid. Information on how to apply is available at: www.gov.uk/employment-tribunals/refund-tribunal-fees. The Ministry of Justice (MoJ)claims to have written to everyone who is owed a refund, using available addresses. Around £7.1 million of fees were refunded during the 2017-18 financial year and a further £15.8 million up to 30 September 2018.

HM Courts and Tribunals Service (HMCTS) has also written to approximately 7,500 claimants whose claims were struck out for non-payment of a fee or hearing fee, asking whether they want their claim reinstated. A similar process has been followed for EAT appeals, of which around 90% have opted to continue with their appeal.

In the period October to December 2017 — the first full quarter following the abolition of fees — single claims in employment tribunals rose by 90%. The resulting backlog means that some claimants are waiting many months for their claims to be heard.

The sustained rise in claims being lodged since the abolition of tribunal fees has inevitably led to increased caseloads for the justice system. For single claims, outstanding caseload rose by 130%. Recent research based on HMCTS records found there were 23,700 outstanding cases in the system from July to September 2018 — the last quarter for which figures were available, representing an increase of 77% on the same period in 2017. The research also showed that tribunals had received 36,900 single claims in the year ending September 2018, an 88% increase from 19,600 the year before.

In early 2018, the MoJ announced it was launching a recruitment drive to bring in 54 new employment judges to tackle the rise in cases.

However, despite the Supreme Court’s judgment, and evidence that fees did not deter weak claims, the government signalled in November 2018 that it was considering to reintroducing “proportionate” and “progressive” fees, with a rebate for those who cannot afford to pay. As such, it appears that tribunal fees may be back on the agenda at some point in the future. However, at the time of writing there are no fees for bringing a claim in an employment tribunal.

Proposals for reform

The Taylor Review of Modern Working Practices, published in August 2017, contains some proposals relating to employment tribunals. These include introducing penalties for employers in claims where they have already lost a claim on similar facts, and ways of making it easier to enforce awards, including naming and shaming employers who do not pay.

HMCTS, which administers the employment tribunals service on behalf of the MoJ, has also sought views on changes to the tribunal structure, including whether the time limit for bringing a claim should be extended, and whether employment tribunals should be able to hear claims of breach of contract that occur while the employee is still employed. Consultation has now closed, and the government’s response is awaited. The full consultation can be viewed online at: www.lawcom.gov.uk/project/employment-law-hearing-structures.