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Employment law update 2018: employment tribunal

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As an employer, am I more at risk after the Supreme Court declaration that tribunal fees are unlawful?

The outlawing of fees for employment tribunals has seen a huge increase in the number of claims being brought by those employed. The changes discussed in this section are therefore likely to benefit a large number of claimants, rather than Respondents (the employer). The decision improves access to justice for those with a true complaint, but consequently may increase the number of spurious claims, or claims to pressure employers into financial settlements.

Watch out for the discretion of the tribunal…

Employers should be aware that the ruling may not only open the floodgates for claims, but the discretion of the tribunal has also been far reaching when it comes to claims that are out of time. The tribunal can use its discretion to allow claims to be brought by a claimant even if it is out of time should the individuals argument be that they could not afford to bring a claim at the time, i.e. the only reason they did not bring the claim when it would have been in time was because of the unlawful tribunal fees that were in place at the time.

It is likely that employers and the tribunals themselves will be keeping a close eye on the statistics and any past claims being brought and at this time it is difficult to say how many of these claims may be allowed to be perused.

What could I be awarded if I brought a claim to an employment tribunal?

There has been an increase in both compensation limits and Vento bands, the subject of wide interest.

The table below shows the difference in compensation limits in effect for claims to the employment tribunal as of 6 April 2018:

Complaint

Maximum award from 6 April 2018

Previous maximum award

Discrimination

Unlimited

Unlimited

Unfair dismissal:

Basic award

Compensatory award

 

£15,240

£83,682

 

£14,670

£80,541

Week’s pay cap to calculate basic awards and statutory redundancy payments

£508

£489

Statutory redundancy pay

£15,240

£14,670

Dismissal for health and safety reasons:

Basic

Compensatory

 

£15,240 (min. £6,203)

No limit

 

£14,670 (min. £5,970)

No limit

Dismissal for making protected disclosure:

Basic

Compensatory

 

£15,240

No limit

 

£14,670

No limit

Contract claims

£25,000

£25,000

Failure to conduct collective consultation

90 days’ gross pay**

90 days’ gross pay**

Failure to inform or consult: TUPE transfer

13 weeks’ gross pay**

13 weeks’ gross pay**

Breach of flexible working regulations

8 weeks’ pay (up to £4,046)

8 weeks’ pay (up to £3,912)

Failure to provide a written contract of employment

£1,016 or £2,032

£978 or £1,956

** per employee

The key change we see in these figures is the updated cap in what constitutes a ‘weeks’ pay’. In 2017 we saw an increase of £10, from £479 to £489, and in 2016 there was only an increase of £4. This year the statutory cap has increased by £19. Whilst the number of days/weeks you can claim for has remained the same, the cap increase means that there is potentially a considerably higher sum that could be awarded to an individual bringing the any of the above claims and many others not listed.

However, this change will only truly benefit those earning over £25,000 gross annual pay (over £489 gross per week).

How will the rise in statutory limits effect employers?

The increase of the weeks’ pay cap may result in notable additional cost if an employer is undertaking a large-scale redundancy exercise.

If I have been discriminated against, are there is there any additional compensation that I can claim?

The Vento Bands cover awards for injury to feelings, arising in most discrimination claims. The bands are constantly changing, increasing twice in the last year alone. The Presidents of the Employment Tribunal in England & Wales and Scotland have released new Vento Bands relating to claims from 6 April 2018 onwards.

The table below highlights the difference between the old bands and the new bands:

Vento Band

New Level

Previous Level

Lower band (less serious)

£900 to £8,600

£800 to £8,400

Middle band (not meriting upper band)

£8,600 to £25,700

£8,400 to £25,200

Upper band (most serious)

£25,700 to £42,900

£25,200 to £42,000

Ultimately, there is a continued focus on ensuring employees are treated fairly and remunerated to a level which reflects the current economic situation. The changes to compensation and Vento levels perhaps reflect an emphasis on how breaches of employment law are treated as a very serious matter and should not be considered lightly from an employer’s perspective.

By Anna Blythe, graduate paralegal in the HR support and employment law department

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