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Employment Law: Could we have a little perspective please?

PUBLISHED: 17:12 16 October 2017 | UPDATED: 17:12 16 October 2017

Darren Sherborne of Sherbornes

Darren Sherborne of Sherbornes


Tribunal fees have been scrapped again leaving employers vulnerable to a claim. When should you fight a case? Darren Sherborne, of Sherbornes, explains...

In 2013, the Government introduced fees for bringing an employment tribunal claim, and new claims against employers plummeted by more than 70 per cent. Beleaguered employers heaved a collective sigh of relief and once again felt free to act with impunity.

At least that is the impression you get from the national press.

Now the Supreme Court has ruled that the fees regime is unlawful and overnight it has dissolved like the ice in the boss’s G&T.

Actually, if you stand back and look at what has actually happened, the impression is of an unholy mess, with no one being served to any degree and British industry all the worse for it.

First of all, if I read one more headline about the European Union interfering with our employment law I am going I am going to get le hump.

The reason the Supreme Court has scrapped tribunal fees has little or nothing to do with the EU.

The judgement in reality has far more to do with the British sense of what justice is than the Human Rights Act. It refers to Magna Carta and open justice.

How British can you get? So no more purging by headline hunting Brexiteers, this is essentially British to its core.

Of course, a 70% drop in tribunals back in 2013 meant a saving in (yes, you guessed it) employment judges, some of whom faced redundancy. Oh the irony!

Now of course, with the scrapping of tribunal fees, tribunal claims have again increased. There are no official figures yet, but threefold is the rough estimate of the claim increase of one officer in the Bristol tribunal. This increase has of course been met with exactly no increase in resource, either in the tribunals or at ACAS who have to deal with claims in the first instance.

With staff now free to start tribunals without cost, it is predictable that claims will rise.

Employers are no less equipped to deal with errant employees than they were before fees were introduced but tribunals themselves are not as well equipped. Therefore, long delays are due to become the norm.

With claims now taking twice as long to deal with, anecdotally, then the uncertainty of a tribunal claim for both employer and employee is longer and often more damaging.

Another feature of this catalogue of unexpected developments is the gradual move that is occurring almost entirely unnoticed, that shifts the burden of social security away from the government and on to the helpless employer.

If you hadn’t noticed the glacial pace of movement you could be forgiven, but think about it. First it was maternity rights, then came sick pay (moving from state to employer), auto enrolment pension (with accompanying employer contributions) and then holiday rights for apparently self-employed workers.

The now famous case against Uber which is currently being appealed, means that employers now pick up the tab for self-employed agents having a holiday.

Naturally, as businessmen and women struggle to keep up with these changes, claims are brought by workers and employees wishing to benefit as the law intended. That’s where the tribunal’s difficulty keeping up is causing the problems. It is not helped by some advisors encouraging employers to spend more defending some claims than the claims are worth.

In August this year, Mark Littlewood, Director General of the Institute of Economic Affairs wrote an article attacking an overly risk averse HR profession in which he quoted an employer who he said spent £50,000 defending a claim for £15,000.

I would suggest he change his lawyer.

These claims could be settled, or negotiated for a fraction of the money, and a fraction of the distraction than a full blown, long delayed tribunal can cause. That’s not to say that an employer should not stand up for itself, or indeed send the right message to the rest of the workforce, but as my father always said, there is a difference between scratching one’s arse and tearing lumps out. Wise words.

To find out more, visit the Sherbornes website here.

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