Employment Tribunals

Simon Robinson, employment law partner at Gordons, Leeds, is interviewed in the Yorkshire Post. When asked: What law would you like to see changed? Mr Robinson responds: “Costs should be awarded automatically against claimants who bring unsuccessful claims. Even though I’ve secured costs awards for clients on numerous occasions, I’ve been frustrated in other hearings I’ve won where the claimant didn’t have to pay my client’s costs.”

Yorkshire Post, Page: 7

According to Hansard:

Employment Tribunals Service

Question

Asked by Baroness Drake

To ask Her Majesty’s Government what plans they have to lower the level of fees for access to employment tribunals.[HL302]

The Minister of State, Ministry of Justice (Lord Faulks) (Con): The Justice Secretary is committed to reviewing the impact of the introduction of fees in the employment tribunal system. The Ministry of Justice is currently finalising arrangements for the timing and scope of the review to ensure that the impacts can be properly assessed. An announcement will be made when the review begins, and again when it has been completed, setting out the results.

The number of employment tribunal claims has plummeted by around 80% for the second consecutive quarter, following the introduction of fees, official figures revealed today.

Claims dropped 81% between January to March 2014 to 6,019, compared with the same quarter in 2012/13, according to government statistics. In the last quarter of 2013 claims fell by 79%, compared with the last quarter of 2012.

Trade union Unison said today’s statistics ‘add significant weight to the union’s arguments that workers are being priced out of justice’.

Unison has been granted permission to appeal the High Court’s rejection of its judicial review challenging the introduction of tribunal fees.

The JR was dismissed in February on the basis that there was no quantifiable evidence at that point to assess the impact of the fees.

Dave Prentis (pictured), general secretary of Unison, said: ‘This downward spiral in the number of employment tribunal cases shows only too clearly that workers are being priced out of a fair hearing.

He said: ‘Today’s figures make shocking reading because individual claims are now at a perilously low level.’

Tribunal fees were introduced on 29 July 2013 and start at around £160 to issue a claim, rising to £250 a claim, depending on the type, and a further hearing fee ranging from £230 to £950.

Richard Fox, head of employment law atLondonfirm Kingsley Napley, described the fall in claims as ‘drastic’ and ‘way outside government expectations when the fees regime was first introduced last July’. He said that Unison may be able to use the statistics in its judicial review challenge.

It is unclear what the overall fall in employment disputes is, as some claimants in employment cases are turning to county courts instead. Former tribunals president David Latham told the Gazette last week: ‘A lot of cases are going through the county courts as the fees are much cheaper, so we don’t know what the figure is.’

BIS had today published its findings from the Survey of Employent Tribunal applications. About 2000 employee sand 200 employers were interviewed. Here are some of the key findings:

  • 79% of small employers had not been involved with a tribunal claim over the last two years
  • although the employees surveyed issued their claims before fees were introduced, 49% said that paying an issue fee would have influenced their decision to issue proceedings (mainly those with lower salaries or unlawful deductions claims)
  • 67% of employers use a representative at the hearing, whereas only 33% of Claimants use a representative
  • 79% of cases in which an offer was made resulted in settlement. The opening offer was made by the employer (rather than employee) 61% of the time
  • 17% of claims went to a full hearing (remember this is cases issued before fees were introduced)
  • the median tribunal award was £3,000, and the median level of expected award (by Claimants) was £4,000
  • 87% of employers said the award had been paid, whereas just 63% of Claimants said they had received the money of those who paid for legal or professional advice, the median amount paid was £3,000
  • 72% of claims were against private sector employers (broadly similar to the 69% of people who work in the private sector).

A Freedom of Information request brought by Thompsons Solicitors reveals that employment tribunal fees were waived in only 4.5% of 14,000 claims in the six months to December, despite government claims that one in three would not have to pay when it brought in means-tested charges. The number of employment tribunal cases has fallen from 50,000 a quarter to 10,000 since fees were introduced in July 2013. Labour’s Ian Murray said: “These new fees are placing a hurdle in front of our poorest workers who have been wronged at work.”

Employment Tribunal Fees – Remission Statistics

A written answer in the House of Commons has revealed that 24% of remission applications between 29th July and 31st December 2012 were granted (in part or in full).

Putting that in perspective, it amounts to remission being granted in just 5.5% of the 9,305 single claims and 1,519 multiple claim cases issued in that period.  In the original impact assessment for tribunal fees, the MOJ predicted that 31% of Claimants would be eligible for fees.

The facts speak for themselves. Since the Government introduced Tribunal Fees of on average £1250 per claim since July 2013, it has been reported that Tribunal claims are down by a massive 79%. There is no other explanation for this fall other than the introduction of fees alone. In essence, this means that 79% more employers are now at liberty to behave unscrupulously and fear no reprisals. The signal this sends to employers is worrying.

The fear alone of these large fees puts off the majority of Claimants from taking legal advice, who at that time are without work, without income and at a particularly vulnerable point in their lives.

The remission scheme designed to meet the fees for people who cannot afford them is intentionally burdensome, onerous and simply not fit for purpose. Almost all remission claims made are rejected at first instance. The fact that the standard rejection form used has 28 boxes for various reasons for rejection speaks for itself. Claimants are asked to provide bank statements which are forensically examined. If you have more than £3000 in life savings you don’t qualify for remission at all. If Claimant’s legitimately receive state benefits, but of the wrong type, they don’t get automatic remission. In short, Claimants simply get fed up, give up, forget it and become one of the 79%.

As for the economic argument, I doubt the fees have actually made any net income given the massive fall off in anticipated revenue coupled with the huge costs of setting up the administration of the fee and remission system.

At the same time as these fees came into force, somewhat less well publicised, the Government also served employers another huge banquet by introducing a cap on unfair dismissal damages from over £74K, to a years pay, whichever is less. This has had a huge impact on those Claimants with claims valued at in excess of a years pay – such as those with large pension losses or those older workers with poor re- employment prospects and large future losses. In either case, their claims are dramatically reduced saving unscrupulous employers thousands.

In essence the new employment law landscape gives employers the green light to behave however they want in the knowledge that there is only a 21% chance they will ever be challenged and even if they are, the financial penalty has been softened for them.

The Government must re-think this bad law quickly. Every month that passes, thousands more people are being denied access to justice in the most shocking way.

Dean Morris, Solicitor

The Presidential Guidance starts by setting out the general rules for actions by the parties and for actions by an Employment Judge. The Guidance then goes on to provide detailed examples of how the rules should be applied in relation to:

  • disclosure of documents and preparing bundles
  • witness statements
  • making amendments to the claim and response, including adding and removing parties
  • establishing the existence of a ‘disability’ in relevant cases
  • remedy, including Polkey deductions and what a claimant needs to show to prove loss
  • costs
  • timetabling
  • concluding cases without a hearing, and
  • judicial mediation.

http://www.justice.gov.uk/downloads/tribunals/employment/rules-legislation/presidential-guidance-general-case-management.pdf

The MOJ has published the quarterly employment tribunal statistics for October to December 2013.  Unlike the July-Sept quarter, there is no ‘skewing’ effect from those who rushed to lodge claims before the introduction of fees in July 2013.

There was a 79% drop (compared with the same period in 2012) in the number of applications lodged.    The number of single claims has dropped from a monthly average of between 4,000 – 5,000, down to 1,700 (a drop of about 63%).

If ever there was a need for definitive proof that the introduction of fees is having a devastating impact upon access to justice for inherently vulnerable people then here it is.

The Government should hold their heads in shame.

 

It has been reported that Exeter Tribunal has seen a drop of circa 75% in the volume of unfair dismissal claims issued of late since fees were introduced in July last year. This statistic is alarming and supports our grave concerns that the introduction of Tribunal fees is dramatically restricting access to justice. Clearly, such a large drop cannot be explained away by any suggestion that these 75% represent frivolous or vexatious claims or claims without merit. The latter category would represent a small percentage of the 75% in our view. The balance are likely to be valid claims with merit that individuals do not pursue through fear of having to pay up tp £1200 in Tribunal fees when they are likely to be without employment. It is this fear that is causing this reluctance. On the ground, we have formed the view that the mere mention of potential Tribunal fees scares peopole off bringing valid claims. Potential Claimants should remember that if they are still without employment, they are at liberty to apply for remission against having to pay these fees and of course we can assist them in this regard. The remission system has clearly been designed to make it as hard as possible for individuals to gain remission, which is disappointing given that we are dealing with vulnerable people having lost their financial independance. Whilst the Government seem hell bent on unashamedley restricting access to justice to save money, we urge Claimants who believe they have a valid claim to let us assist them in purusing their claims and helping them navigate through the hurdles the system currently presents.

Let’s hope the Court does the right thing this Friday when they deliver their Judgement on the Judicial Reveiw application against the introduction of these fees and gets rid of them.

Dean Morris