As an alternative to Brexit, Russian spies and what happens now to Ant and Dec, here is something new to keep your next dinner party guests impressed and entertained, the Ministry of Justice’s unmissable statistics for the Employment Tribunal Service for Q4 2017.
Out earlier this month, these show in stark terms the inevitable consequences of combining the abolition of Tribunal fees in July last year with the erosion of ET staffing and administrative resources over the years preceding it.
Individual ET claims over those 3 months rocketed upwards by some 90% (as in, nearly doubled). Sterling efforts by ET staff saw the number of cases dealt with over that period jump by a very creditable 21%, but that still leaves an outstanding caseload up by some two thirds in three months. Multiple claims leapt by an extraordinary 467%, though most of that increase was due to a single case on behalf of some 30,000 claimants. Perhaps inevitably, the Tribunal seemed to have focused on the more easily-handled individual claims, with the result that the number of multiple claims dealt with fell by over half.
The process of refunding to past Tribunal litigants the fees which it now turns out they shouldn’t have had to pay is underway. Over Q4 to the year-end some 4,800 applications for repayment were received and over £2,750,000 was extracted from the Treasury’s coffers to satisfy them. That sounds like a lot but initial estimates were that retrospectively repealing the ET fee requirement will ultimately require repayments to the parties of in excess of £33m. There is clearly still a long way to go.
As a transparent face-saver, the Government has so far left unanswered the question of whether a revised set of ET fees will be introduced in future. My money is on this being a no, at the very least until after the next General Election. Not only would this alienate the voters whom the Government will then need even more desperately than it does now, but there is no clarity around how far you would have to reduce the fees to avoid the allegation that they still represent an obstruction to justice, such that any lesser level could still be vulnerable to the same challenge. More prosaically, if fees come down too far then they may cease to be worth the hassle and admin of collecting them in the first place. While the Government is no doubt keen to be seen to keep a grip on ET claim numbers (and the Q4 statistics will reinforce this) it is most unlikely to choose to do so at a loss.
And lastly, an antidote to the individual at each dinner party who will say with clunking inevitability at some point in any discussion about these things that of course, employers can’t do anything these days without being sued for it – clearly claim numbers have gone up, but of all those cases resolved in Q4 last year, 31% were settled via ACAS and 33% were either resolved by other means or withdrawn anyway. Only 8%, less than 1 in 12, actually succeeded before the Tribunal, compared to 28% (more than 1 in 4) which were defeated. Even if claim numbers do balloon upwards without the restraining influence of the fees, there is no indication that these percentages will be much affected – one of the key arguments against retaining the fees was that success rates pre- and post- their introduction had not significantly altered, showing that they had actually had little or no deterrent effect on the bringing of weaker claims.