Today (26 July 2018) marks exactly one year since the Supreme Court handed down its landmark decision in the Unison case, finding the Government's introduction of fees to pursue a claim in the employment tribunals (in 2013) to be unlawful.
Following the decision, a refund scheme was established by the Government to reimburse claimants and respondents who had paid a fee, although take up of the scheme has reportedly been low. Claimants whose claim was rejected or dismissed for non-payment of the applicable fee have been offered the option of reinstating their claim, but in practice relatively few have chosen to do so.
Tribunal claims have risen considerably as a result of the decision to scrap fees. According to the latest quarterly tribunal statistics, published last month (for the period January to March 2018), the number of single claims lodged with the employment tribunals has increased by 118% compared with the same period in 2017.
This substantial increase in the number of tribunal claims is also reflected in the Acas 2017/2018 Annual Report, which was published last week. Acas reports an increase in demand for its early conciliation service, with notifications increasing from around 1,700 to 2,200 a week following the Unison decision, representing an increase of 19% compared to the same period last year and an increase of 39% in the number of cases involving a tribunal claim.
The Birketts Employment Team has likewise seen an increase in the number of claims issued to its clients, particularly the more speculative and lower-value claims that were likely to have been deterred by the requirement to pay a fee. As a consequence of the significant reduction in judicial resources and administrative support during the period when the fee system was in place, the employment tribunal system is now struggling to cope with demand.
Pressure on the tribunals
In our experience, tribunals are often slow to respond to correspondence and it can even be difficult to get through by telephone. Many regions are experiencing long delays in cases being listed for hearing, particularly the more complex cases with multi-day hearings. It is to be hoped that a recent recruitment drive by the Ministry of Justice for new salaried employment judges will go some way to relieve the current pressure on the employment tribunals.
The question of fees being reintroduced in some form has not been discounted by the Government, but there are no firm proposals to do so at present. In the meantime, employers should be aware that the number of claims is likely to remain elevated and should seek to mitigate against the risk of a claim, particularly when dealing with employee grievances and disciplinaries.