Employment Tribunal statistics for the period October to December 2013 have shown a sharp decline in the number of Employment Tribunal claims brought since the fees regime was introduced last Summer.
The statistics: in summary
The latest statistics show a dramatic reduction in the number of Employment Tribunal claims during October to December 2013, when compared with the same period in 2012. Although the figures are provisional at this stage and the Ministry of Justice has pointed out that there is an inevitable time delay in the processing of fees and applications for fee remission, which will be reflected in the figures, there is no escaping the overall trend they display.
The figures released revealed 45,240 claims received in the final quarter of 2012. The comparable figure for 2013 is 9,801 - a 79% reduction. This figure includes multiple claims (where there is more than one claimant), which do have a tendency to skew the figures, including a series of claims that are being brought by airline pilots under the Working Time Regulations 1998. However, even when these multiple claims are taken out of account, the drop in claims remains significant, at 64%.
Looking specifically at discrimination claims, the statistics reveal reductions in claim levels across the board, ranging from an 83% reduction in equal pay claims to a 57% reduction in race discrimination claims.
These significantly reduced figures are supported by a recent Eversheds survey, in which 42% of respondents reported a reduction in the number of claims received by their organisations. For employers and the Tribunal Service itself, which had been creaking at the seams with a burgeoning case load, such a drop in the number of claims clearly has a number of positive aspects, which includes reducing the backlog of claims. However, the extent of the reduction will surprise many and will be of particular concern to employee representatives and unions.
The future of fees: judicial review
Last year, unsuccessful judicial review proceedings (in which the lawfulness of a decision or action of a public body is reviewed), were brought by UNISON. They were seeking to quash the fees regime on the basis that it is “unjust and discriminatory” and prevents many whose rights have been infringed from obtaining redress. UNISON’s challenge failed largely because the Court considered it too soon to assess the impact of fees: the hearing took place back in early Autumn, only a matter of weeks after fees were introduced.
That decision is being appealed and, even if the appeal fails, the High Court left the door open to further challenges when further evidence is available. Such challenges appear inevitable in light of the latest statistics. In particular, it will be argued that those statistics reveal a substantial drop in claims derived from EU rights, particularly discrimination rights, which supports their claim that the fees regime:
- breaches the EU principle of effectiveness by making it virtually impossible or excessively difficult to enforce employment rights deriving from EU law; and
- is indirectly discriminatory, in that fees may put certain protected groups at a particular disadvantage and may not be proportionate.
Any further challenge will be complicated, however, by the new Early Conciliation scheme, which becomes compulsory on 6 May. Potential Employment Tribunal claimants will have to contact ACAS before they can bring a claim. The Government and ACAS hope that this will encourage parties to settle disputes without recourse to litigation. In future, therefore, it may be more difficult, when analysing statistics, to discern to what extent a reduction in claims is a result of the fees regime and to what extent it can be put down to the success of early conciliation.
Even if UNISON meets with success in their claim, it seems most likely that the outcome would be a reduction in the fees payable, rather than a wholesale repeal, or an expansion of the remission scheme.
Few employers opposed the introduction of Tribunal fees and there is little doubt that they have curbed claims perceived as of dubious merit. That said, it is in the interest of all that the Tribunal system is stable, robust and fit for purpose. The fact that the statistics could serve to re-enforce a perception that Tribunals are less accessible casts an unwelcome shadow over the future stability and certainty of the current system.