Employment Tribunal Fees Discriminate Unison Win Legal Challenge

The Trade union, Unison has successfully challenged the UK government over the charging of employment tribunal fees.

The Supreme Court ruled unanimously in favour of the union, which had argued that the fees, of
up to £1,200, for taking a case to a tribunal discriminated against women and other groups of workers.

The Ministry of Justice said it accepted a Supreme Court judgment in favour of public sector union Unison, which has fought a four-year battle against controversial fees

The Government is to take immediate steps to stop charging employment tribunal fees and refund more than £27 million to the thousands of people charged for taking claims to tribunal since July 2013, following this “landmark” Supreme Court ruling.

A review of the impact of the fees earlier this year showed there had been a 70% drop in the number of cases since they were introduced in 2013 There were 254,000 claims in the period April to June 2013*. This is a third higher than April to June 2012.

We must wait and see if the totals of future claims climb back to the levels of 2013, Or whether organisations have improved their working practices in line with their elds ‘best practice’.

We could look at this as a human victory over the misery of the
way some employees are treated
and it would be a fool that did not acknowledge that some employers, sometimes acting under their insurance company’s and legal advice, are less than honourable in the way they deal with employee complaints.

When it comes to human disagreements there is rarely a binary answer, everything is on a sliding scale; with the exception of the judiciary. There, something is lawful or not, regardless of justice.

Cynics could say that the, now regarded, unfair charges actually discouraged the people who were threatening litigation as a path to extract money from an employer without a solid foundation.

On the other hand, in human terms, we can also say the employee could have been so stressed by the working environment the extra pressure of nding the £1200 and the unremitting pressure of dealing with highly knowledgeable lawyers who know every loophole was just too much to bear.

Where do employers and employees go from here? How do the employers protect themselves from unscrupulous claims and how does the employee ensure their rights are upheld.

First lets look at employers.

For every industry there are Acts Laws and Guidelines to assist you
in designing working practices that
are lawful. When you demonstrate, and that is the operative word, demonstrate, that you are using best practice and endeavours to protect your employees’ wellbeing that should protect you in most cases.

To do this if you have 5 or more employees you have to have written evidence of a risk assessment, policies to manage those risks and these have to be seen to be embedded within the organisations working practices as pro-active.

As a guide the risk assessment could follow this 5-step approach,

    • Identify the hazards.
    • Decide who is at risk and how.
    • Evaluate the risks against the existing controls, assess their suitability, and iden fy and implement any addi onal appropriate control measures.
    • Record the significant findings.
    • Review the assessments at regular intervals.

The scope of the risk assessment will identify the pressure points and those individuals at risk. The ndings from the risk assessment will determine the action plan to be undertaken. Action plans can be speci cally formulated to target and remove the risk. All actions should have measurable key performance indicators (KPI) to be set so that actual results can be measured against them and adjustments to plans adjusted.If this approach is embedded into the culture of the organisation it should demonstrate that the employer as undertaken all reasonable precautions to protect the safety and wellbeing of the employees.

We should also look at the people, usually HR personnel that have to deal with the human problems and the organisations demands. Are they fully quali ed to deal with the problems? Does their quali cation just test that knowledge has been passed or is there an examinable element of competency to face reel life situations? Can the organisation demonstrate they are ‘ t for purpose’?

If we take just one scenario, where an employee that has signed off work displaying symptoms of stress. The HR person, lets call them

the ‘Coordinator’ is managing the case. The Coordinator has a ‘duty
of care to the employee and also
to the organisation, which could
be con icting. Also there may be pressures from the employees line manager for a speedy return for the bene t of the organisation, or the Finance Director questioning the
costs involved in treatment. A suitable quali ed practitioner to help the employee must be appointed. These factors must be carefully juggled to have a successful outcome. If not the strong possibility of a ‘foreseeable risk’ situation could be created. At which point the organisation is exposed to a litigation threat.

If this then goes to tribunal the organisation must evidentially prove that the risk was measured, policy was put in place to manage that risk. Which will also include that the every stakeholder involved was ‘ t for purpose’. It is important that the level of quali ed competency should match the actions taken. Also all actions should follow a process that has been approved by the organisations legal advisers.

Following these suggestions, at the best it should lower the risk of being taken to tribunal at the worst have an accurate recording of evidence to support a defence.

For the employee there is also a
duty of care issue. Every individual
is primarily responsible for his or
her own safety and wellbeing. If an occasion arises where an employee feels that they are at risk of harm, he or she should report their misgivings at the earliest moment and in the manner your organisation has designed. It
is your responsibility to document everything, to back up any future claim.

Visit www.workingforwellbeing.co.uk and download the FREE wellbeing guide for extra information or contact info@workingforwellbeing.co.uk for a FREE consultation

Author

Francis McGinty Bsc (Hons) Psych

References

*Tribunal Statistics (quarterly) – April to June 2013

From: Ministry of Justice, Part of: Tribunals,

Published: 12 September 2013