Was the Union case to get Tribunal Fees unlawful on the grounds they denied justice to those that couldn’t afford them a case of be careful of what you wish for asks Chris Wilkinson from Expert HR Solutions? It would now appear that with cases up by around 165% compared to 2017 and the number of judges reduced as a result of an almost equal and opposite fall in cases whilst Tribunal fees were in place there are Courts where hearings are now being scheduled into 2021. It is hard to see how having to wait 2 years for a hearing is a step forward says Chris.
Chris says whilst the ideal is to stay out of the Tribunal process completely, if that’s not possible, one thing for employers to do is gather and collect all notes and documents they can ahead of the tribunal hearing, adding that gathering the necessary evidence to defend a case can be more difficult the longer employers wait and collecting documents early can also decrease legal spend as it can keep employers “ahead of the game” in bringing evidence before solicitors.
There are plans to increase the number of judges by 54, but it is questionable whether that increase will significantly reduce waiting times. One possible way for Employers to reduce the wait would be to Settle out of Court via a Settlement Agreement or settle under the ACAS mediation which remains in place. While this may be good practice to get rid of the claim, it calls into question whether these delays are prohibiting access to justice, as neither party may have the opportunity to put forward their case where the matter is resolved through a settlement for reasons of time. The use of Settlement Agreements, particularly in cases of sexual harassment have been questioned as they often contain non-disclosure agreements. The use of these clauses is subject to a Government enquiry and the deadline for responses to these has been extended to 31st January 2019.
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