Employment Tribunal Statistics

We have blogged before (click here) about what we see as the serious restriction of access to justice inflicted by the introduction in July last year of the new employment tribunal fee regime. 

It can cost £1200.00 to pursue an unfair dismissal claim to a hearing. 

In theory, a system of “remission” exists so that fees can be waived if you cannot afford to pay them.  In practice, fewer than 1 in 10 remission applications have been granted, and since capital is taken into account, any termination payment you have received if your employment has come to an end might automatically disqualify you from any help with the expensive fees.

The government was sure that fees would deter meritless claims – and business would reap the benefits.

3 months ago, the first set of statistics showing the effect of the introduction of fees suggests that tribunal cases had dropped by some 80%.  In other words, compared to the same period a year before, only 1 in 5 cases was being presented in the new regime where fees have to be paid.

We wondered whether that was a “blip” – but it seems not.

The latest snapshot for a further 3 month period confirms that the drop in tribunal claims has been dramatic. 

80% of claims made a year ago are no longer being presented. 

Now, every practitioner will tell you that some tribunal claims were speculative.  Some people lodged claims even in the face of advice from lawyers or unions that those claims were weak, and the old system meant that claims could be lodged at no cost to the claimant.

No one to my knowledge has ever seriously suggested that 80% of claims were without merit or purely speculative. 

Indeed, we are now in a position where the number of claims being lodged has now dropped below the level of the number of claims that originally used to succeed.

So it has not just deterred speculative claimants. 

We have deterred claimants with reasonably arguable cases. 

Worse still, we have deterred claimants who, according to the old statistics, would have won their cases against their employers.

Access to justice has been denied.  That was always going to be the case, but the dogmatic approach of government has meant – not for the first time – that the views of professionals and stake holders have been ignored once more.

For shame: what price are worker’s rights, if no one can afford to enforce them?

Paul Scholey - Senior Partner
For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.


 

Judicial Review on Unfair Dismissal Cap Dismissed

On 29 July 2013 the Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2014 came into effect. 

The upshot of this Order is that the compensatory award in unfair dismissal proceedings will now be limited to 1 year’s gross salary (or to the statutory cap on compensation, £76,574 (as of 6^th April 2014), whichever is the lesser amount). 

At the end of 2012 the London-based employment law firm Compromise Agreements lodged a Judicial Review Application for this Order to be reconsidered.

The founder of the firm, Mr Alex Monaco of Counsel, asserted that the new cap on compensation would disproportionately affect older people as they were, previously, most likely to receive more than a year’s salary in compensation due to increased difficulty in finding another job and thereby mitigating their loss.    

However, on Tuesday 13^th May 2014, the High Court dismissed the Judicial Review Application at a Permission Hearing.

In a recent statement Mr Monaco stated that he is currently “looking at options and looking at appealing [the decision]”. 

As a firm, we are of the collective opinion that the new cap is yet a further example of the current government’s deliberate erosion of fundamental employment rights.

In other news the Trade Union, Unison, is also currently challenging a High Court ruling (made back in February 2014) which rejected a request for a Judicial Review of the Government’s decision to introduce Tribunal fees, (fees which also came into effect on 29 July 2013.)

Recent statistics show that, since the introduction of Tribunal fees, the number of employment law claims has dropped sharply, with a 79% fall in the final quarter of last year compared with the same period in 2012. 

A recent written answer in the House of Commons has also revealed that only 24% of remission applications (i.e. applications for reduced fees) made between the introduction of Tribunal fees on 29th July and 31st December 2012 were granted (in full or in part). To place this in context, these figures evidence that remission has been granted in only 5.5% of the 9,305 single claims and 1,519 multiple claims that were issued in the same period. This is significantly lower than the Ministry of Justice’s initial prediction, prior to the onset of fees, when they stated that around 69% of Claimants would qualify for remission, either in full or in part.

Chris Ridley - Solicitor

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

An extraordinary day in the life of an Employment Lawyer – 29th July 2013

We blogged last month about the legal changes that were expected, but now they have arrived. The 29^th July has brought change – fundamental change. It has also brought with it... mayhem!

Last Monday, for the first time ever, Claimants now have to pay a fee to lodge their claim. A Claimant will pay £160 for a “type A” claim and £250 for a “type B” claim. Hearing fees for those claims are £230 and £950 respectively. Type A claims are meant to be the easier ones, type B the more difficult sort. But which claims are which? Good question – as of this past Monday, we didn’t have a final copy of the Fees Order – it was only in draft form. The final draft didn’t arrive until one day after implementation!

We also had an email from the Ministry of Justice who wrote to us to clarify that, astonishingly, Equal Pay claims, which can be some of the most complex litigation in employment law, are still type A claims – the simpler ones! However, ministers are expected to announce a change to that position shortly. So if anyone has a claim for equal pay they would be wise to issue it now whilst it’s at the cheaper rate. This could add to the surge of claims already issued before Monday by Claimants trying to avoid paying a fee altogether (although that could not be done on-line because the system was down).   We hear that over 500 claims were lodged in the Leeds Employment Tribunal alone on Friday! I think we can expect to wait many weeks for any of the Tribunals to acknowledge our claims. Claimants – expect delays.

Equal pay claims aren’t the only anomaly. A claim for a Protective Award for failing to consult about redundancies is a type B claim, yet the same claim for failure to consult under TUPE (when employees transfer to another employer) is a type A claim! In addition, the guidance suggests that TUPE failure to consult claims and working time claims fall within Band B whereas the fee Order clearly still lists them within Band A. Let’s hope for some clarity on the fee types as soon as possible.

And then we have brand new Claim Forms. We also have a brand new remission scheme, so that people can apply to pay no fee at all or only part of the fee. After road-testing these forms, whilst they look at first ok, we see there are real problems. First of all, it’s not easy for a Claimant to find their form on the Tribunal’s website. You then only have 20 minutes on each page when completing online, otherwise you lose your data. The fee type seems to (wrongly) set itself after only a few questions. It has crashed several times during our tests. There is no way of attaching documents such as additional particulars of claim and there is no way of saving the completed form – you have to print it for your records!

The PDf version of the form is no better. It can’t be saved without a ‘signature’ and once it’s signed it doesn’t seem to let us change it! It doesn’t seem as though we’ll be able to email a copy to our clients for approval and if any changes are required, the full form will need to be retyped. It is going to take some getting used to.

And this is in today’s age of technology!

A further issue that doesn’t seem to have been thought through is the problem of how to pay a fee. The Tribunal system would prefer for us to lodge claims on-line and pay the fee at the same time by debit or credit card.  Claimants themselves might be able to do this but what about law firms paying the fees on behalf of their clients, where the client has a source of funding e.g. a union? There was talk of a Paypal account but no sign of it. If we are to pay a fee on behalf of a client, we will need to send a cheque and rely on the postal system or hand-deliver it with the claim form! If your office is near to one of the allocated hearing centres, hand-delivery seems to be the best option and it guarantees the claim form and fee is received. However, when you act for clients nationally, a trip to Cardiff, London or Glasgow on the day limitation expires is going to be messy!

And aside from fees and new claim forms we have new rules of procedure, a new cap on unfair dismissal compensation, pre-termination negotiations in unfair dismissal cases are inadmissible and compromise agreements are now ‘settlement agreements’ with a new ACAS code of practice.   

What a landscape the government is creating! And what an interesting way of doing it...

Daniel Kindell - Solicitor 

For further information on Employment Rights, please visit our website or call 0033 3344 9600 and ask to speak with our Employment Rights team.

 

Reduction in response time to government consultations

We often, as a firm, voice our collective opinion on government proposals. In recent years, we have spoken out on a number of issues, ranging from the implementation of a cap on trainee solicitors’ wages, to the Jackson Reforms in the field of Personal Injury law and the now imminent introduction of fees in the Employment Tribunals.

We therefore speak from years of experience when we say that clear and considered responses to consultations require a great deal of research and preparation, which can often take several months.

We were therefore alarmed to hear in recent weeks that the government has now introduced new guidance to shorten the twelve week period for which ministers were previously required to consult the public on government proposals to a mere two weeks.

This clearly will make it extremely difficult for interested parties to gather evidence and prepare a reasoned and informed response to policy changes that directly affect us all.

The upshot of this is that, potentially, sections of the public, in particular those with access to fewer resources who will no doubt struggle to meet the two week deadline, will essentially be left without a voice to challenge government policy.

This appears to us to be nothing more than an attempt by the government to suppress opposition.

To place the effect of reducing the consultation period into context, in their response to the reduction of consultation periods the Institute of Employment Rights cite the Enterprise and Regulatory Reform Bill as an example whereby the government introduced, in their words, a “technical amendment” to existing legislation, without consulting the public. This “technical amendment” was to section 47 of the Health and Safety at Work Act 1974, the significance of which is far-reaching as it overturns the law imposing employers’ strict liability for the health and safety of their employees, which has been in effect for 114 years.

The implications of this are that various existing personal injury clients of our firm who suffer from life-long, incapacitating injuries, including one client who lost an eye, and potentially a career, due to faulty work equipment, would in future have been prevented from bringing their claims against their employer.

We therefore share the view of the Institute of Employment Rights and have supported their ongoing petition to the Secondary Legislation Scrutiny Committee to voice our opposition to the government’s blatant attempt to stifle the voice of opposition.

Christopher Ridley - Solicitor

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.