Further to our article on 27 July, confirming that Employment Tribunal fees had been deemed unlawful and would no longer be payable, the Employment Tribunal has indicated that there has been a significant increase in claims submitted since that judgment.
We are still yet to receive confirmation of the procedure for refunding fees paid for claims issued following the introduction of fees in 2013. We will provide further information on this once the procedure is established.
We are already experiencing the anticipated effect on Employment Tribunal resources and appreciate that this will be extremely frustrating for clients, particularly those who were already “in the system”. Solicitors will be doing everything that they can to keep cases on track but will ultimately be beholden to the orders of the Employment Tribunal.
Whilst we remain of the view that employers with good HR practices should have little to fear, there is realistically no way to prevent an employee or former employee who is determined to do so from issuing a claim.
Whilst employers often seek to defend such claims without representation in order to minimise costs, this can actually result in more costly consequences, particularly if the claim is successful and compensation is awarded. Although costs orders are not automatically made in favour of the successful party in the Employment Tribunal, an order may be made where the claim or defence has no reasonable prospect of success, or where a party acts vexatiously, abusively, disruptively, or otherwise unreasonably in bringing or conducting the proceedings.
Lack of familiarity with Tribunal process could therefore result in conduct which could be considered unreasonable at the very least, which could leave employers having to pay the employee or former employee any legal costs the individual has incurred, as well as any compensation awarded. This could have serious financial consequences for small businesses. In addition, prompt advice may assist employers in assessing the value and prospects of a claim against them, which could enable a commercial settlement to be reached at an early stage, which could actually be a more cost effective solution.