Following last month’s decision of the Supreme Court declaring that employment tribunal fees were unlawful, the number of tribunal claims are expected to soar. Zuraida Curtis looks at five types of case that will increase in the post-fees era.
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1. Holiday pay
The Employment Appeal Tribunal confirmed in Dudley Metropolitan Borough Council v Willetts and others that voluntary overtime payments that are sufficiently regular constitute normal pay and should be included in holiday pay.
There have also been a string of employment law cases involving companies operating in the gig economy that have resulted in individuals being classified as workers rather than being self-employed.
This means that these individuals will be entitled to basic rights, including holiday pay.
In light of these decisions, there is likely to be an increase in holiday pay claims since the costly fee barrier has been removed.
2. Sex discrimination and maternity discrimination
Research undertaken by the Young Women’s Trust this year showed that young mothers are more likely to experience maternity discrimination and that six times as many under 25 year olds reported being dismissed after informing employers that they are pregnant.
The requirement to pay fees made it difficult for these employees to bring employment tribunal claims as a number of them would be on low pay, having to weigh up the cost of bringing a claim against the other stresses and priorities that pregnancy brings.
With the removal of the fees barrier, there is an opportunity for more of these cases to be taken to an employment tribunal.
3. Equal pay
Gender pay gap reporting came into effect on 6 April 2017, requiring organisations with 250 employees or more to publish annual figures demonstrating the pay gap between male and female employees.
Pay gap reporting made the headlines again when the BBC published its pay report recently. With the publication of pay gaps within a company, there is an increased risk to employers that equal pay claims will rise now that the fee barrier has been removed.
4. Low value cases
The introduction of the fee system resulted in a sharp decrease in low value claims. Employers faced little risk from an employee on a lower salary, who was able to mitigate his or her loss quickly.
In recent years, employers also faced a low risk of claims brought by employees with under two years’ service, such as an employee dismissed during his or her probationary period.
A number of employers would risk a dismissal on the basis that the employee was unlikely to bring a claim due to the requirement to pay a fee.
These claims are all likely to increase with the removal of the fee barrier. It is also quite possible that employees with short service will be more willing to bring discrimination and whistleblowing claims.
5. Multiple claims by unions
The Supreme Court decision to end tribunal fees was a huge victory for Unison and it is likely that unions will become more attractive to employees, given the positive publicity that this case has given union membership.
Employees who are unionised have more access to legal support. With the abolition of fees, the costs to unions in bringing multiple claims will reduce and employers are likely to see an increase in union-backed multiple claims.