Employment Tribunals

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

Can an employment tribunal refuse to admit covert recordings?

No, says the EAT in Vaughan v London Borough of Lewisham and Others.

 

The Regulations appear to contemplate and encourage a process where Claimants are unrepresented. I note the EC form proposed contains no details of any appointed representative. With this in mind, I am struggling to understand how a lay unrepresented Claimant (a) will fully appreciate what legal claims they may or may not have and on which they are being asked to conciliate; and (b) the value of those claims, so the Claimant will be able to make an informed decision on whether to settle via EC in the terms proposed.

 

As part of the EC process, it seems that ACAS will potentially be put in the unenviable position of having to advise Claimants about the nature of their potential claims and their value. It is clearly undesirable for ACAS to be put in such a position and one that may ultimately lead to satellite litigation in the form of claims for negligence if Claimants are not fully advised as they would be if they had been legally represented in a normal Solicitor/Client relationship.

 

I am also concerned about the settlements being concluded via COT3 agreement, where the lay Claimant has not taken legal advice before agreeing to settle in those terms and compromise any future actions. If there were compromising their claims via Compromise Agreement, they would have that right.

 

I am all for early conciliation but it must involve, contemplate and encourage legal representation to be an integral part of the process for what are, to me, abundantly obvious reasons. No doubt this would also assist ACAS greatly as well.

Dean Morris