The Business Exchange Bath & Somerset Issue 5: Autumn 2017 | Page 13

A TERRIBLE DILEMMA
by Dick Jenkins, Chief Executive of Bath Building Society
Recently the Supreme Court ruled that the imposition of a
£1,200 fee on claimants for invoking Employment Tribunal (ET)
proceedings was unlawful. What is certainly true is that the
level of tribunals dropped instantaneously and dramatically; by
80% or so, since this fee was introduced in 2013. Whether you
think this fee was effective in reducing specious and vexatious
claims or a denial of justice might depend of your position as an
employee or trade unionist or an employer.
Things are such that in the world of employment law
and the economics of Employment Tribunals (ET) that the
system (even with that fee in place) is ripe for exploitation
by cynical or vexatious employees. Let us say that
somebody loses their job in a genuine restructure of a
business and then chooses to bring an unfounded claim
of harassment or discrimination; of whatever sort, against
the employer. The employer might have a pretty good case,
but if that is allowed to go to an ET, then the employer
is likely to feel there is at least some small risk of losing
the case and may therefore feel compelled to hire legal
representation to defend the case. This sets up a minimum
cost for the employer, so the incentive then lies with the
employer to settle for a smaller sum than the cost of legal
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representation. Claimants, of course, realise this and can
(and indeed sometimes do) cynically exploit this situation.
The employer is now in a terrible dilemma. Do they do the
right thing and fight their corner, but end up with a bigger
bill, or do they cave in and come to a settlement simply
because it’s cheaper, even though they are stone cold
certain that they have treated their employee fairly?
I have every sympathy with somebody who really has
been roughly treated by an employer and would wish
them to have easy access to justice. But the latest ruling by
the Supreme Court doesn’t address the unfairness in the
current regime where employers can be taken advantage
of. If the £1,200 tribunal fee isn’t the right answer, the
Government needs to find a better one.
Dick Jenkins, Chief Executive of Bath Building Society
@BathBuildingSoc
05/10/2016 17:17
05/10/2016
THE BUSINESS EXCHANGE
2017 17:17
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