Discrimination claims by pregnant women and new mothers look set to rocket following the Supreme Court’s decision that employment tribunal fees are unlawful.

The ruling means there is currently no charge to make a claim at a tribunal. A move which means cash-strapped and vulnerable women will no longer have to suffer in silence.

Impact of the Ruling on Pregnancy and Maternity Discrimination Claims

“This is a particularly significant victory for those who felt they had a pregnancy or maternity discrimination claim because money is often already tight due to limited or part-time pay, having another mouth to feed, and childcare costs. Tribunal fees were therefore acting as a barrier to justice, preventing or putting women off raising claims after being unlawfully discriminated against.”

Discrimination cases were the most expensive, with costs rising to as much as £1200 in England, Scotland, and Wales. This has been reflected in the fact that pregnancy and maternity discrimination claims have fallen by 45% in the last year.

Challenges and Time Constraints for New Mothers

As well as the high cost of a claim, there is a time lock of three months to bring a discrimination case – something which makes accessing justice difficult for mothers coping with the pressure of a new baby and who feel stressed about rushing to make a claim. Indeed, this time limit should be extended to six months for new mums.

Supreme Court’s Landmark Decision and Its Consequences

In what is being described as the biggest victory for employment rights in this country, the Supreme Court found the government was acting unlawfully and unconstitutionally when it introduced the fees. It will now have to refund more than £27m to the thousands of people charged for taking claims to tribunals since July 2013, when fees were introduced by Chris Grayling, the then Lord Chancellor.

From now on, claimants will not have to pay any fees to do so, and those who have paid fees will be entitled to have these repaid to them by the State because the Government undertook to repay such fees if the legal challenge was successful. Employers who have had to pay fees to a Claimant following the loss of an Employment Tribunal case may be able to claim the cost of those fees back too (although this is less clear cut).

Long-Term Implications and Employer Concerns

Following the introduction of employment tribunal fees, discrimination cases on the grounds of sex, disability, and race, as well as equal pay claims, all fell by around 50% from 2016 to 2017 compared to the last year before fees. And because abolishing tribunal fees was a Labour manifesto pledge, the Supreme Court ruling is a particularly difficult test for the Conservatives in a fragile coalition who are likely to take their time deciding whether to develop proposals for a new fees regime that satisfies the key test of not preventing access to justice.

Meanwhile, it’s likely that past claimants, put off by the price of a tribunal, will now revisit their claim – though whether tribunals will be prepared to allow this will depend on the type of claim and the claimant’s particular circumstances.

Accordingly many employers may be worried about more claims, “We need a fair, swift, and efficient system to handle employment disputes. In the short term, access to the employment tribunal is once again free of charge. But it will be more important than ever for employers to have fair and accessible procedures to promote workplace resolution and also best manage the risk of litigation.”

Wider Access to Justice for Vulnerable Employees

As well as maternity discrimination cases, those on flexible, casual contracts who have been denied holiday pay or not been paid the national minimum wage will have greater access to making a claim.

“I have known many vulnerable people – especially pregnant women and new mothers – who haven’t pursued claims because they couldn’t afford the fees and can’t justify draining the last of their savings. If they have any. Money should never be a barrier to justice and we need to protect vulnerable employees. Spending their last bit of savings on a claim which is often protracted, stressful, and time-consuming with no guarantee they will win is therefore not something they would want to willingly undertake.

Hopefully, a fair system will be established whereby access to justice is balanced by employers’ rights not to face a barrage of hopeless claims.”

For more information you can contact the employment team on 0161 930 5151 or email employmentteam@gorvins.com

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