On 29th July 2014, it will be one year since the Government introduced fees for lodging employment tribunal claims. In their report released in March, the Ministry of Justice stated that the number of employment tribunal claims received in the quarter October to December 2013 was down to 9,801, being 79% lower than for the same period in 2012. Their latest report, covering the period January to March 2014 compared to the same months the previous year, shows a drop of around 60%.
Whatever the precise numbers and the reasons for them, this is a significant reduction in the number of employment tribunal claims compared with the number of claims lodged prior to the introduction of tribunal fees in July 2013. Inevitably this is good news for employers as the reduction in claims hopefully reflects that claims which had very little merit (if any) are no longer being brought by ex-employees.
There has however been a backlog of claims coming through the tribunal process where claimants have applied for fee remission, due to delays in the application process. This has resulted in employers receiving claims months (sometimes six months) after they were lodged, despite the claimant having lodged their claim on time. The speed of the remission application process may have some impact on tribunal numbers but it is unlikely to be the only cause. We understand that significantly less than the 31% of remission applications predicted to be granted have in fact been granted in full.
Given the introduction of the mandatory ACAS early conciliation process which came in to force on 6 May 2014, there is every possibility that tribunal claim numbers could decrease further. The early conciliation process requires claimants to contact ACAS regarding their potential claim prior to lodging it with the tribunal. This is to promote alternative methods of resolving potential disputes and preventing them getting to a stage where litigation is the only way to resolve the parties’ issues. The early conciliation process allows the parties one month to try and resolve any potential disputes. The claimant is unable to lodge a claim without going through this process and having received a certificate from ACAS enabling them to submit their claim.
In addition, the Government, as part of their defence to the Unison judicial review proceedings, agreed to conduct a review into tribunal numbers and the new fee regime and as to whether the introduction of tribunal fees created a barrier to claimants having access to justice. This review is due to take place over the summer/autumn this year. It has also been reported that if the Labour party win the next General Election (due to take place in 2015) then they will scrap tribunal fees. It has not been confirmed whether or not this will form part of their manifesto for the election next year.
It is clear that the number of tribunal claims lodged has reduced significantly and may continue to do so. The English High Court’s decision in the Unison judicial review challenge rested heavily on the fact that at the time of the hearing full figures were not available and arguments were based on predicted figures given by the Government only. Now that the Government’s predicted figures have not come to fruition, it seems likely that the days of the employment tribunal fee system, at least in its current guise, may be numbered.
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