It has long been a mystery to me as to why so few practitioners choose to attend ET users meetings. Particularly senior ones. The Employment Lawyers Association has tried hard to engender more enthusiasm for these, and for a time it worked.
But it seems enthusiasm has waned somewhat in recent times. Possibly that coincides with the introduction of ET Tribunal fees in 2013, which led to such a steep decline in the number of applications going through the Tribunals.
However, it is a new world out there following the decision of the Supreme Court a few weeks ago, confirming these fees were unlawful. This has seen them being withdrawn straightaway.
So rather than guessing, I thought I would go down to East London and hear what was happening as a result, from the horse’s mouth. There were a handful of people there only, but the meeting was incredibly useful. It was ably, warmly, and conscientiously, chaired by Regional Employment Judge Carol Taylor. The detail of the discussion will be confirmed in the Minutes to be posted to the HMCTS website in due course. However, what I can report is that the number of ET1s received by the East London Employment Tribunal in August is more than double (yes double) the number received in August 2016. Of course, deeper analysis of these claims will have to be carried out over the course of the next few weeks as the trend is examined. And these numbers may not be replicated across the country. But to suggest that nothing has changed since the momentous decision in July, would be far from the truth.
That of course begs a number of questions, not least of which is currently whether there are judicial resources to cope. I think we can have a good guess as to the answer, as things stand currently.
But there are other important issues as well. First of all, we have been anticipating the administrative arrangements that are to be put in place for those who want to reclaim the ET fees they should never have been asked to pay. And thus far they have yet to emerge. One suspects these are not quite as straightforward as might appear, which accounts for the delay.
Importantly, as I have been discussing recently with Peter Frost, a Partner at Herbert Smith Freehills, with whom I have worked on employment reform issues of many kinds down the years, we are awaiting clarity as to what will happen to those claims that are now to be brought out of time. They would be brought on the grounds that it was not reasonably practicable to have brought them before now on account of fees, or that it is just and equitable to allow them through (depending upon whether the claim is for unfair dismissal or discrimination). We have been told by the President of the Employment Tribunals (England and Wales) that such claims should “proceed to be considered judicially in accordance with the appropriate legal and procedural principles in the usual way”. More recently, the Minister of State, Dominic Rabb MP, has said that “the judiciary will consider those applications case-by-case”.
But is that sufficiently helpful? We are in a new environment now, so is it right that prospective parties, particularly those who are unrepresented, are left just to work out their chances on their own? So although the meeting covered more prosaic administrative matters, it was perfectly possible to air these (arguably more interesting!) questions before the Judges themselves, in an environment that had been set up specifically for us users to engage in that way.
Employment Tribunal Practitioners and users, next time there is an ET Users Meeting in your area, may I suggest you find time to attend!