Today sees the publication of the latest Employment Tribunal statistics from the Ministry of Justice, for the period October to December 2013

In the past, release of such information has been perfunctory and generally uncontroversial. Indeed, these statistics had been relatively consistent over a number of years, at least regarding single claims brought by individuals. However, that changed when the fees regime was introduced last July, making today’s publication more keenly awaited than before for what it reveals about tribunal usage and the future of tribunal fees. 

The statistics: in summary

The latest statistics show a dramatic decline 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. This time last year, 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. More specifically, unfair dismissal claims are down by 65% and sex discrimination claims by 77%. In addition, despite new, enhanced powers to sift out weak claims, these had been exercised by the Tribunal in fewer than 1% of cases over the period.    

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 may be influenced by today’s statistics, not least since the Court did not close the door to such arguments, were the evidence stronger.

In particular, UNISON may seek to argue that today’s 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.

However, 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. 

Comment

Few employers opposed the introduction of Tribunal fees and there is little doubt that they have  curbed claims perceived as dubious or tactical. That said, it is in the interest of all that the Tribunal system is stable, robust and fit for purpose. The fact that today’s figures 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.