Agri Lore – Employment Tribunal fee regime abolished

In a landmark and largely unexpected decision this summer, the Supreme Court has held that the Employment Tribunal fees regime, which was introduced in 2013, is to be abolished.

Historically, if an employee or worker wanted to bring a claim in the Employment Tribunal against their employer there was no fee to be paid. The Government introduced the fee regime with the aim of dissuading employees/ workers from instigating vexatious or unmeritorious claims, encouraging earlier settlement, and shifting the financial burden of the Employment Tribunal onto those who were using the service. However this regime faced extensive criticism (which was headed by the Trade Union, UNISON), who alleged that it prevented thousands of employees from accessing justice and had a particularly adverse impact on women and lower income workers.

Legal challenge

It was as a result of UNISON’s legal challenge to the validity of the regime that the Supreme Court has made the decision to quash the fee regime on the basis that Employment Tribunal fees were ‘inconsistent with access to justice’ and indirectly discriminatory. While it is unknown at present whether Employment Tribunal fees are to be abolished completely, or if a reduced fee regime is to be introduced, what is certain is that the present regime is no longer applicable.

Impact of decision

The nature of agricultural work means that employees/ workers are often engaged on temporary contracts and this is a sector which historically has offered lower rates of pay. Consequently agricultural employees/ workers are likely to have been the type of individuals who UNISON argued were disadvantaged by the fee regime. Anecdotally our experience has been that agricultural employees have been less inclined to instigate Employment Tribunal proceedings since the fee regime was introduced. We should therefore anticipate a possible influx of claims now that the regime is no longer applicable.

Claims out of time

Employers should also be alert to the risk that the Employment Tribunal may act flexibly in permitting employees/workers to bring a claim outside the usual timeframes, where that employee/worker was deterred from instigating the claim earlier because of the unlawful fee regime.

Prevention

However prevention is better than cure and therefore farm businesses would be well advised to review their business practices to ensure that they are compliant with employment laws and guidance. In the agriculture sector employers should be particularly conscious of their health and safety  obligations  to  their  workforce,  with the Health and Safety Executive reporting in July that 30 people were killed on British farms or in agriculture- related activities in 2016/2017.

For more information please contact James Baker, Partner in the Employment Law team.