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The employment tribunal system
[ch 1: pages 23-26]The Employment Tribunal Service is part of the Ministry of Justice HM Courts and Tribunals Service. Most employment claims are heard by employment tribunals, but some cases must be brought in the ordinary civil courts (the small claims court, the county court or the high court).
The main kinds of claim that workers must take to the civil courts rather than the employment tribunal are:
• all breach of contract claims where the employment contract is ongoing;
• applications for injunctions; and
• claims for compensation for personal injury (unless the claim is for personal injury caused by a breach of the Equality Act 2010 — see Chapter 7).
Employment tribunals (industrial tribunals in Northern Ireland) were originally set up under the Industrial Training Act 1964 as an informal, accessible, quick and inexpensive way of resolving employment disputes, and a means of reducing strikes. They represented a deliberate policy shift away from resolving workplace disputes through collective industrial action towards an approach based on individual legal rights.
An employment tribunal’s jurisdiction is based on statute. Without a legal statute giving the tribunal the power to deal with a particular issue, it is not allowed to consider it. An employment tribunal can hear some claims by employees for breach of the employment contract, but only if the breach arises or is outstanding on dismissal (see Chapter 3). Unlike the civil courts, where there is no cap, compensation for a successful contract claim in the employment tribunal is capped at a maximum of £25,000. There is also a general legal principle that if you bring a claim in one court, you cannot then take the same claim to another.
Employment tribunals are for claims by workers against their employer, not for claims by employers against workers. Employers must bring all their claims in the civil courts. The only time an employer can claim in the employment tribunal is where their employee has already issued a tribunal claim for breach of the employment contract, and the employer may be able to “counter-claim” against the employee for damages for breach of the same contract. Legal advice should be taken before issuing any type of tribunal claim.
Employment tribunals have their own rules of procedure, the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013 (see Chapter 13).
Employment tribunals hear a wide range of claims, including claims for unfair dismissal, unlawful deduction from wages, redundancy pay, discrimination, equal pay, claims relating to parental rights, working time claims, claims based on unlawful blacklisting and trade union rights.
In May 2014, it became mandatory for prospective claimants to initiate Acas Early Conciliation (EC) as a first step in all tribunal claims (except claims for “interim relief” – see page 173) by submitting an Acas EC Notification Form. The purpose of Acas EC is to establish whether the parties are willing to try to resolve their dispute through Acas at an early stage without the need for a tribunal claim.
The Acas EC procedure also operates as a mandatory gateway to the tribunal system. Without an Acas EC Certificate Number, the claim must be dismissed. Chapter 13 contains information on accessing Acas EC and making a tribunal claim. There is also detailed information on the Acas website.
The introduction of tribunal fees in July 2013 fundamentally changed the employment tribunal landscape, resulting in a 67% fall in the number of single tribunal claims. Even before the introduction of fees, there were major hurdles in the way of prospective claimants, but tribunal fees made a bad situation worse (see box below).
A TUC report — What price justice? — shows that women and the low paid are the biggest losers from the tribunal fee regime. In practice, only union members or the very wealthiest workers can now access the employment tribunal. Many unions have made arrangements to loan the tribunal fee to members, subject to conditions such as the strength of the claim (although members must always apply for government “Help with fees” (i.e. fee remiss ion) if they qualify – see Chapter 13). Much union litigation is strategic – designed to secure change that will impact on large numbers of workers.
The Scottish government has promised to abolish tribunal fees. There are no tribunal fees in Northern Ireland. There is detailed information about tribunal fees in Chapter 13.
Union campaign against employment tribunal fees
In late March, the judicial review challenge by public service union UNISON to the tribunal fees regime reached the Supreme Court, although the outcome of the case will not be known until late 2017. UNISON argues that the regime breaches EU law and discriminates against women, disabled and ethnic minority workers. The Court of Appeal has described the case as “troubling”, expressing a “strong suspicion that so large a decline in claims [67%] is unlikely to be accounted for entirely by cases of ‘won’t pay’ and it must also reflect at least some cases of ‘can’t pay’”.
Early in the litigation brought by UNISON, ministers were instructed by the court to modify the fee system without the need for further litigation if campaigners’ concerns were shown to be justified. This led to the long-awaited Ministry of Justice review of tribunal fees, finally published in February 2017.
The review acknowledges that some 3,000 and 8,000 individuals have missed out on justice since the introduction of fees. This is the estimated number of potential claimants, since the introduction of fees, who could not resolve their dispute through Acas EC but did not bring a tribunal claim because they said they could not afford to pay. The government argues that there is “no conclusive evidence” that these individuals were “prevented” (as opposed to merely being “discouraged”) from bringing their claims, choosing instead to spend their money on other “non-essential” items.
The review makes the following minor recommendations for change:
• A small increase in the income threshold for full fee remission (see box on page 495 of Chapter 13);
• Better information about the Help with fees system and the Lord Chancellor’s power to waive fees in “extraordinary” circumstances; and
• Removal of fees where the claim is only for unpaid wages or statutory redundancy pay, to be paid out of the National Insurance Fund because the employer is insolvent.
Commenting on the review, UNISON has repeated the call for fees to be scrapped immediately, pointing out that the regime has failed on its own terms. Even though the introduction of fees is promoted on the basis that “service users” should pay, only a fraction – just 13% – of the cost of running the tribunal system is recouped through this method. And the losers, says the union, are not “vexatious claimants”, but rather individuals with genuine grievances that go unheard.
In June 2016, the House of Common Justice Select Committee published a highly critical review, concluding that fees have had a “significant adverse impact” on the ability of meritorious claimants to access justice. Recommendations include:
• Modifying the ‘type A’ and ‘type B’ claim distinction, since it fails to reflect the complexity or length of cases;
• Substantially reducing fees;
• Overhauling the fee remission system, with only one application for the issue and the hearing fee; and
• Giving special consideration to pregnancy discrimination cases, including a review of the three-month time limit.
Chapter 13 contains information about how to pay the fees and how to access “Help with fees” (fee remission).