Member Article

The latest tribunal statistics published by the Ministry of Justice this month indicate a significant fall in the number of employment tribunal claims following the introduction of tribunal fees in July of last year.

The number of claims brought in October to December 2013 was down to only 9,801, a whopping 79% fewer than the same period in 2012, and 75% fewer than the previous quarter.  

The Ministry of Justice has commented that the number of claims can fluctuate from month to month, and can sometimes be skewed by claims involving multiple claimants.  However, even taking these factors into account the figures indicate that the direction of travel is that fewer workplace disputes will be heard at tribunal.  

The introduction of fees last Summer formed part of the Government's wider reforms of employment law designed to streamline and modernise the employment tribunals system.  The measures introduced include the routing all claims to ACAS to offer early conciliation before going to a tribunal, and encouraging greater use of other alternatives to tribunal, such as mediation. Also behind the proposals appeared to be a desire to alleviate some of the pressures on an overloaded tribunal system, and to discourage spurious claims and reduce the related costs to business.  

With the introduction of fees, claimants are now required to pay up to £250 to bring their claims to a tribunal, with an additional payment of up to £950 due if their claim progresses to a hearing.  A remission system operates for those on low incomes.  Mandatory pre-claim conciliation through ACAS will apply from 6 April 2014, which will provide an opportunity for disputes to be discussed and resolved before fees become payable.  However, the success or otherwise of conciliation will still depend on the parties actively engaging in the process.

At the time the tribunal reforms were introduced, Employment Relations Minister Jo Swinson commented that the government was “… committed to finding ways to resolve workplace disputes so they don’t end up with two sides in front of a tribunal” which, she said, “should always be the last resort, not the first port of call.”

The introduction of fees was challenged in judicial review applications brought by UNISON (in England and Wales) and by law firm Fox and Partners (in Scotland), who argued that fees are discriminatory and unjust.  Amongst the grounds of complaint are that the introduction of fees effectively prevents UK citizens from exercising their rights under European law, and that the fee regime will have a disproportionate adverse impact on women (who are more likely to bring certain claims such as equal pay).

The hearing in Scotland was postponed to allow the UNISON hearing to take place.  At its hearing, UNISON sought to rely on an earlier set of tribunal statistics in support of its challenge.  However, the High Court was not satisfied that a decision could be made at this time as it was too soon for the full impact to be judged.  UNISON has vowed to “fight on”, and so its challenge could potentially be resurrected, particularly if future tribunal statistics also reflect a continuing reduction in claims.  Similarly, the current challenge brought by Fox and Partners in Scotland, which was postponed in October 2013 for a period of six months, could well be influenced by the latest statistics when this case is heard later this year.  

The Government has given an undertaking to claimants across the UK that, if the introduction of fees is found to be unlawful, all fees will be repaid in full with interest, and so the outcome will be awaited by many.

Whether or not either of these challenges will be successful is yet to be seen.  The cases will not turn on the statistics alone, and further analysis will no doubt be carried out to identify the groups most affected by fees.  However, in the meantime, practitioners and claimants will be following the progress of the challenges with interest.