Changes to the tribunal system

The rights and protections available to safety reps and other important health and safety-related rights such as the statutory protection available to whistleblowers are enforced in the employment tribunal. There have been important changes to the tribunal system that safety reps need to be aware of.

Tribunal fees

Since July 2013, all claims in the employment tribunal carry fees which are paid by claimants only — not employers. The fees are substantial. For example, a claim by a safety rep for failure to pay for or allow time off for training has a £160 fee for issuing the claim and a further £230 hearing fee. An unfair dismissal claim attracts an even higher fee — £250 to issue the claim, followed by a further £950 for a hearing. There are more fees, for example if the claim is appealed.

There is a fee remission scheme (i.e. full or partial financial assistance) in place but it is not generous. It is based on an assessment of household (not individual) income and capital and the thresholds are very low. During the first three months of the fees regime, just 180 tribunal claimants out of 4,500 individual claims received a full or partial fee remission.

Many trade unions have made arrangements to loan their members the tribunal fee as long as qualifying conditions have been met – for example that the claim is strong enough. Even if trade union assistance is available, members should always apply for fee remission. There is more detailed information about tribunal fees and remission in LRD’s annual employment law guide Law at Work (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1771).

Acas early conciliation

A second important change to the tribunal system was the introduction of Acas early conciliation. From May 2014, a new first step must be taken by all claimants before issuing a tribunal claim. This new first step is to contact Acas to consider early conciliation of the claim. The service is free. Reps should note that the early conciliation process does not apply to claims for interim relief (see page 65). Although initial contact with Acas is compulsory, either side is free to refuse to participate in conciliation without penalty. There is detailed information about Acas early conciliation in LRD’s annual employment law guide Law at Work (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1771).

UNISON challenge to tribunal fees

Public services union UNISON says that the introduction of fees has caused a dramatic reduction in the number of employment tribunal claims. Since they were introduced in June 2013, claims have fallen by 80%, with sex discrimination claims down by 91%. UNISON is challenging the lawfulness of the fees and in April 2015 the union was granted permission by the Court of Appeal to proceed with appeals against High Court decisions refusing its two Judicial Review applications. The appeals were due to be heard as Health and Safety Law 2015 went to press.

The Lord Chancellor agreed in the first Judicial Review claim that he would reimburse all fees that have been paid, if they are found to be unlawful.