Statistics published yesterday by the Ministry of Justice confirm a sustained reduction in the number of employment tribunal claims lodged since the fees regime was introduced last year. The figures, covering the period January to March 2014, will increase the pressure on the Government to rethink the fees regime.
The statistics: in summary
The statistics are published every quarter. This time last year, the published claim figures in the equivalent period of January to March 2013 revealed 13,491 ‘single’ claims received. The comparable figure for 2014 is 5,619 - a 59% reduction. ‘Single claims’ are those made by a sole employee/worker; they can be contrasted with ‘multiple claims’, where two or more people bring proceedings arising out of the same facts, usually against the same employer. Single claims provide the more reliable gauge of trends in the employment tribunals.
The number of single claims accepted by the employment tribunals in the latest quarter is slightly higher than in the period covering October to December last year, figures for that quarter showing a 64% drop in claims against the equivalent period in the previous year. It is difficult to know the reason for the difference and delays in processing applications for remission could play a part. However, what is clear is that the fees regime continues to have a significant impact on the level of claims.
The future of fees
No doubt UNISON, which is pursuing judicial review proceedings against the Government, will be hoping to rely on the latest statistics to shore up its case for the fees regime to be quashed. UNISON alleges that the fees regime breaches the EU principle of effectiveness (by making it excessively difficult to enforce employment rights) and is indirectly discriminatory. Although the High Court rejected UNISON’s arguments following a hearing last year, the union is appealing that decision. Their case failed at first instance largely because the High Court considered it too soon to assess the impact of fees, given that the hearing took place back in early Autumn and only a matter of weeks after fees were introduced. Now that further data is available, UNISON is likely to seek permission to rely on it as additional evidence to support its claims.
The soonest we could hope to have a final determination in the appeal is probably Autumn this year given that the case is currently scheduled to be heard some time between September and December. However, it’s possible that the dispute could rumble on for at least another couple of years. This is because, even if the appeal succeeds, matters may not end there: the Court of Appeal might simply decide that the High Court decision was wrong in law, without actually determining what the correct answer is on the facts. In that event, the case would be referred back to the High Court for determinations on the evidence. Similarly, even if the appeal fails that may not be the end of the matter: a further judicial review application is a distinct possibility unless the Court of Appeal rules out a further application.
The Judicial Review proceedings, whilst increasing pressure on the Government to act, are not the only proceedings the Government will be concerned about. Separate proceedings for judicial review are pending in the Scottish court system but are currently stayed pending the outcome of UNISON’s case.
The Government has committed to keeping the fees and remission schemes under review. We do not expect any formal appraisal to start in earnest until much later this year. However, the sustained and significant drop in claim numbers will increase the pressure on the Government to reconsider the levels at which fees have been set and/or the way the remission scheme operates.
If, ultimately, there is a change, whether as a result of UNISON’s claim or the Government’s review, it seems most likely that the outcome will be a reduction in the fees payable, or an adjustment of the remission scheme, rather than a wholesale repeal. Eventually, therefore, we may see an increase in the number of claims, although it is unlikely they will reach the levels we have seen in the past.