July 28, 2017

Employment law news seems to be a little like a bus service at the moment.  You wait a while for a big new development to come along and then two come rushing past in quick succession.  Following hotly on the heels of the Taylor review which we reported on recently, this week has seen the momentous Supreme Court decision which ruled that employment tribunal and appeal tribunal fees are unlawful under UK and EU law.

Tribunal fees have been controversial ever since their introduction in 2013.  Unison’s legal challenge has been rumbling for some time now and with evidence suggesting fees were responsible for at least a 70% drop in employment litigation, the judgment this week was not overly surprising.  The Supreme Court effectively declared that the fee regime prevented access to justice and specifically highlighted the contrast between the level of fees to bring an employment claim compared to that required in the small claims court.  They were also held to be sex discriminatory as more complicated claims (which carried higher fees) were found more likely to be brought be women.

So where does this leave employers?  Well it would seem inevitable that in general the number of employment claims being brought across the country will increase.  However, in respect of the particular industries our clients operate in, the potential impact is less clear.

The media sector has never historically been one that has generated significant amounts of employment litigation given the large number of short term engagements so this decision may not have any notable impact here.  For technology businesses or betting and gaming companies, longer term employment relationships are much more likely and it’s therefore feasible to expect a greater number of claims will be received.  Lower value claims, particularly those likely to be relevant to ‘gig-economy’ workers, may also now become more prevalent given they can be issued for free.

Unlike the Taylor review proposals, this development is going to have an immediate impact.  Tribunals stopped taking fees the day the judgment was announced and the government is apparently hard at work trying to figure out how to repay all the fees that have been collected over the last few years.  It’s possible that a different fee regime could be introduced but given the current political climate, such a proposal could be toxic.  So for the foreseeable future at least, waiting to see if a claimant is willing to ‘put their money where their mouth is’ will no longer be a viable tactic.