There has been considerable speculation as to the likely effects of the Supreme Court’s decision in R (on the application of UNISON) v Lord Chancellor to declare invalid the Government’s system of tribunal fees. Given the cogent evidence presented by UNISON that this system of fees had resulted in a marked fall in the number of claims, logically the abolition of this system should lead to a marked rise in the number of claims. Anecdotally there is some evidence of a rise in the number of claims in various tribunals but it might perhaps be doubted whether the number of claims will rise to the levels that appertained prior to the introduction of fees.
Firstly, in what are still cash-strapped times for many, individuals who have either lost their job or been deprived of a contractual benefit will not automatically rush to the tribunal; surely that must be a last resort (although the ability to become part of what seem to be a growing number of group claims, particularly in the private sector, constitutes a new option). Secondly, the system of Early Conciliation is now well -entrenched and ACAS claims considerable success for its operation. Finally, and as noted in a recent report conducted by the Employment Lawyers Association into the use of ADR to resolve employment disputes (co-chaired by Peter Frost at this firm), a considerable and growing number of employers in both the public and private sectors are embracing workplace mediation, a concept designed to introduce early and non-confrontational methods of conflict management into the workplace before they get anywhere near a tribunal. This is likely to account for a number of employment disputes that might otherwise have reached the tribunal.
And what about the large number of claimants who were apparently deterred from bringing claims in the tribunal purely because of their inability to pay a fee that has now been declared invalid? The Government has provided no guidance for claimants or tribunals as to the approach the latter should adopt. Similarly the President of the Tribunals has simply stated in a Practice Direction on 18 August 2017 that the “appropriate legal and procedural principles [would be applied] in the usual way”. Where does this leave both claimants and employers vis a vis claims that if made now will be considerably out of time? The normal principles, as such, can be summarised succinctly. For certain types of claim – unfair dismissal, unfair deduction from wages and holiday pay claims being the key examples – a strict standard applies whereby claims must be brought within the requisite time limit (usually three months) unless it was not reasonably practicable to do so. For others – in particular discrimination claims – a more flexible standard applies whereby claims may be allowed to be brought out of time if it would be just and equitable to do so.
At first sight, neither obstacle would seem to be insuperable. Readers of Lord Reed’s judgment in the UNISON decision could be excused for thinking that the powerful way in which he expressed his view that a large number of claimants had been wrongfully deprived of access to justice by an unlawful system would mean that Employment Judges would readily find that it was not reasonably practicable for hard up claimants to make claims or, all the more so, that it would be just and equitable to extend time. However, application of the normal principles could in practice present serious obstacles to the claimant. In all cases the claimant will have the burden of proof and would normally have to attend a preliminary hearing to determine whether the claim should be allowed to proceed. At that hearing (which would be a public hearing) they would need to put forward all relevant evidence. But how much evidence of means will be needed? And what standard will tribunals adopt to adjudicate whether the claimant didn’t have the money (or access to the money-which may involve an investigation into arrangements with parents and friends) or that, given their disposable income, it wouldn’t have been reasonable to have expected them to have incurred this extra expenditure. Perhaps Lord Reed’s reference to claims that “could reasonably be afforded” and “realistically afforded” affords claimants some wriggle room. Nevertheless, this public intrusion into a claimant’s privacy could well put a number of would-be claimants off from claiming. Even claimants only facing the lower “just and equitable” hurdle are not guaranteed an easy ride. The tribunal’s starting point will be that the relevant time limit should be applied and the claimant will still have to demonstrate to the tribunal why in their particular case it is justifiable to extend time. Finally it will be imperative for any would-be claimant to get on with things. Given the wide publicity of the Supreme Court decision, no claimant claiming ignorance of the change in the law is likely to be believed and previous case-law has stressed the need to present a claim (or under the current law, commence the Early Conciliation process) at the earliest opportunity once it is realised that a claim that has not been brought within the relevant time limit for a potentially good reason is to be commenced.
Moreover, even if a claimant successfully negotiates this initial hurdle they will then likely face others that face any litigant seeking to make a claim a long time after the occurrence of the relevant events; memories will fade, evidence may have disappeared (a particular issue for claimants making discrimination claims) and above all the claimant may have tried to “move on”. Resurrecting unpleasant workplace events of months or even years ago, may well be the last thing many claimants will want to do, particularly in circumstances when for the reason explained above, they will have to make a quick decision as to whether to proceed. Finally, any such claimant will likely only go to the trouble of initiating such a process if the claim is for a reasonably large sum. And so, many of the claims for relatively small amounts of unpaid wages and holiday pay are very unlikely to be made.
That is not to say that employers can simply sit back and assume that in practice they will be immune to past claims. There is already anecdotal evidence from around the country that a number of employment judges are taking account of arguments advanced in relation to fees as part of their overall decision to allow out of time claims to proceed, particularly those where the test is the “just and equitable” one. And in particular claims which are only perhaps weeks, as opposed to months or even years, out of time may have a decent chance of being allowed to proceed if claimants decide to present them. Where employers can identify such claims and where they are of a potentially high value it may in specific cases be worth reviewing their position as they would for any material contingent liability. But it must be considered unlikely that the Supreme Court decision is going to “open the floodgates” to past claims. Those that are allowed to proceed, it is suggested, will be very much the exception.
Author: Peter Frost, Partner, London