According to the Ministry of Justice, since tribunal fees were introduced in July 2013, employment tribunal claims have dropped by around 70%. Although this is partly attributed to added encouragement to settle through ACAS, it is in no small part due to the fact an employee must pay as much as £1200 to proceed to a hearing. This has caused much discussion, particularly in Scotland, about whether or not this provides access to justice for employees.
The Smith Commission
Included in the much publicised Smith Commission last week, was the suggestion that all powers over the management and operation of the tribunals should be devolved to the Scottish Government. It should be noted that all power to create laws for the workplace were recommended to remain with Westminster. However both the SNP and Scottish Labour Party have previously made it clear that they are against tribunal fees. It is therefore very likely that when these powers are finally devolved to the Scottish Government, tribunal fees will be reduced significantly. The extent of the reduction is still to be determined, but there is a distinct possibility that fees will be removed completely.
What does this mean?
This means that in Scotland there will likely be a significant rise in the number of claims being raised by employees. But it will not only be Scottish employees making claims. It is likely that employees in England and Wales could also be persuaded to head to Scotland in an attempt to avoid their own fee regime. If a claim occurs in England and Wales, and the employer also resides or carries on business in Scotland, then the employee will potentially be able to raise a claim north of the border.
The suggestions put forward by the Smith Commission will only become law after the general election next year. It will only be then that the Scottish Government can make reforms to the tribunal fees system. Therefore we are unlikely to see any changes implemented until 2016. It is worth noting that there are also currently cases being heard in both England and Scotland deciding whether tribunal fees prevent access to justice. The outcome of these cases will also have an effect on tribunal fees.
My advice to employers for now would be to make the most of the employer friendly system while you still can!
Andrew WallaceTrainee Solicitor – Employment Law@EmpLawyerAndywww.blackadders.co.uk
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