October 27th, 2017 / Insight posted in Blog

Watch out! There are likely to be more Employment Tribunal claims about!

At the end of July, my colleague Donal wrote an article about the removal of Employment Tribunal fees, following the Supreme Court’s judgment that deemed the fees unlawful and discriminatory.

While it is still too early to tell what impact this ruling is going to have on the number of future claims, Zuraida Curtis, an Employment Law Editor for XpertHR believes the following five types of cases will increase now the fees have been removed.

  1. Holiday pay
  2. Sex discrimination and maternity discrimination
  3. Equal pay
  4. Low value compensation claim cases
  5. Multiple claims by Unions

The EAT recently confirmed in Dudley Metropolitan Borough Council vs Willetts and others that voluntary overtime payments that are sufficiently regular now can constitute ‘normal pay’. Consequently they should be included as part of an employee’s holiday pay calculation – this also includes standby and call-out allowances that are paid regularly to employees. This means that any employee who feels they now have a claim for backdated holiday pay will be able to bring a claim without having to pay a fee with potential claims backdated for up to two years.

Typically, those who may have been discriminated against on the grounds of sex or maternity are more likely to be on low pay, meaning they would have had to decide if they could afford to bring a claim given other stresses and priorities.

In light of the recent equal pay claim case where Asda employees were able to claim equal pay compared to their warehouse counterparts, there is now an increased risk more claims will be made because the fees have been removed.

With there being no fees, it has removed the barrier previously stopping people bringing a lower value claim. Employers are now more likely to face a higher number of low value claims as well as many other types of claim.

But there is some good news for employers because in 2016 only 6% of claimants won their case against their employer. However, employers will still have to decide if the best course of action is to defend a claim or settle as part of the conciliation process or before the tribunal hearing itself. Keep in mind that it can cost between £10,000-£20,000 plus counsel costs to defend a claim at a tribunal, this is without the cost and disruption to the business of having senior management and directors attending to give their statements.