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Tribunal Fees: A Return on the Horizon

Many of you will recall that, in July 2013, the Conservative Government introduced fees for bringing claims in the Employment Tribunal. Claimants were required to pay a fee to issue their claim, and a further fee if the matter proceeded to a final hearing. The amount payable depended on the type of claim:

•  Type A claims (e.g. unlawful deductions from wages, breach of contract, redundancy pay, Working Time Regulations such as holiday pay): £160 issue fee and £230 hearing fee.

•  Type B claims (e.g. unfair dismissal, discrimination including race, sex, disability, and whistleblowing): £250 issue fee and £950 hearing fee.

At the time, the introduction of fees was widely reported to have led to a sharp decline in the number of claims being brought. However, this trend was reversed in July 2017 when the Supreme Court ruled the fee regime unlawful, describing it as an unjustified interference with access to justice.

Why has the issue of Tribunal fees resurfaced?

Earlier this month, it was reported that the Labour Government was considering reintroducing a fee to issue a Tribunal claim, which we understand would have been a flat fee of £55. This proposal formed part of wider cost-saving measures within the Ministry of Justice’s budget.

On the face of it, the proposal might appear reasonable. Since the abolition of fees, employers have faced a notable increase in meritless and frivolous claims. Combined with a significant backlog in the Tribunal system, caused by increased claim volumes and chronic under-resourcing, this has led to substantial delays for all parties involved in litigation. However, the proposal was met with strong opposition from trade unions, who argued that even a modest fee could deter low-paid workers from pursuing justice.

What has the Labour Government said?

Justice Secretary and Deputy Prime Minister David Lammy has ruled out the reintroduction of fees categorically, stating:

“Everyone, no matter their income, should be able to get access to justice to challenge unfair behaviour at work.”

“It’s not just a basic right, it’s also fundamental to this government’s plan to make work pay. That’s why it will remain free to bring a case to an employment tribunal, ensuring everyone, no matter their means, can stand up for their rights at work.”

“When people face discrimination, unfair dismissal, or wage theft, they should never be priced out of their right to seek redress.”

In summary

There was a glimmer of hope for employers that Tribunal fees might return, potentially helping to deter unmeritorious claims and ease pressure on the Tribunal system. However, that hope now appears to have faded and the door to reintroducing fees seems firmly closed.

Case Update: Employer's Liability for Employee's Acts of Sexual Harassment

The Employment Appeal Tribunal recently handed down judgment in AB v Grafters Group Ltd, a case that provides important guidance for employers on the scope of their liability for acts of sexual harassment carried out by their employees.       

Background

The Respondent, a hospitality recruitment agency, employed the Claimant and a colleague (CD) at its Cardiff branch. On 1 November 2021, the Claimant mistakenly believed that she was scheduled to work at Hereford Racecourse and arrived late at the office, expecting arranged transport. Instead, she was given a lift by CD, who later informed her that she was not required to work that day. When the Claimant asked to be taken home, CD drove her to a nearby golf course and subjected her to sexual harassment.

Legal test

For an employer to be held vicariously liable for the acts of its employees, those acts must occur ‘in the course of employment’. The judgment of the Employment Appeal Tribunal (EAT in Grafters provides clear guidance on the meaning of this phrase:

a)  The words 'in the course of employment' should be interpreted in the way that every layperson would understand them.

b)  Generally, the starting point will be to consider whether the alleged harasser was at work, in working hours and carrying out work activities.

c)  In the event that the circumstances outlined at b) are not present, the Tribunal should then go on to consider whether there was nevertheless a sufficient nexus or connection with work such as to render the action 'in the course of employment' (including, in this case, whether the provision of the lift was an extension of work and the workplace.)

d)  The motives of the harasser are irrelevant. The key question is whether the conduct is sufficiently connected to employment.

EAT's findings

The EAT held that that the first instance Tribunal (the Tribunal) had failed to apply the correct legal test. The Tribunal neglected to consider whether there was a sufficient nexus or connection with work such as to render CD's action 'in the course of employment'.

The EAT held that the Tribunal was entitled to conclude that the act of harassment was not done while CD was at work and carrying out work duties. The findings that CD was not due to work at Hereford, was not required to drive the Claimant to Hereford, that there was no expectation of informal lifts and that CD's offer to drive the Claimant to Hereford was not arranged or sanctioned by the Respondent was relevant to that conclusion.

However, the EAT held that the Tribunal should also have considered the events leading up to the incident, such as CD sending the Claimant texts whilst he was working for the Respondent on a shift, and the closeness of the connection between CD's job for the Respondent and why the Claimant was in his car when the harassment occurred.  

In the light of the above, the appeal was upheld. The case was remitted to the Tribunal for further consideration.

Key takeaways for employers

This case serves as an important reminder for employers that the extent of their liability for acts of their employees goes beyond those activities that occur at the workplace. Employers can be held responsible for employee's acts at events linked to work, such as social gatherings. Ultimately, whether an act is 'in the course of employment' is a decision for the Tribunal, based on an analysis of the specific facts of the case. 

You can find our previous article on the practical steps employers can take to reduce the risk of sexual harassment in the workplace here.

Should you wish to discuss any of the issues raised in this article, please do not hesitate to contact a member of the Employment team.

Q: How long does a disciplinary investigation typically take?

A: This is fact-specific and will be heavily influenced by the nature and gravity of the allegations, the volume and complexity of available evidence, the number of witnesses involved and the need to preserve confidentiality. Essentially, the more serious the allegations or the more people/evidence involved, the longer the investigation will likely take.

However, it should be conducted ‘without unreasonable delay’ (ACAS code) and within the timeframes set out in the employer’s disciplinary policy. Failure to complete a fair and thorough investigation in a timeous fashion could well render the investigation process and any subsequent dismissal unfair.