On 26 July 2017, the Supreme Court held that the introduction of Employment Tribunal and Employment Appeal Tribunal fees was unlawful from the time they were introduced (July 2013). As a result of the judgment, those fees ceased to be payable the very same day. For further details of the decision see here.
An increase in claims seemed inevitable and this has proved to be the case. Quarterly Employment Tribunal statistics published since the judgment have shown a consistent, marked increase in Employment Tribunal claims.
The most recent report was published on 13 September 2018 covering the period 1 April to 30 June 2018. The statistics show that, compared to the same quarter in 2017, that is, just before the abolition of fees:
- Single Employment Tribunal claim receipts increased by 165%;
- Disposals increased by 56%;
- Outstanding caseload increased by 130%;
- The highest discrimination award was for disability discrimination (£242,130) and disability discrimination cases had the largest average award, £30,700;
- Religious discrimination cases had the lowest average award, £5,100;
- The average award for unfair dismissal was £15,007.
Regarding disposal of complaints for this period:
- 25% were Acas conciliated settlements;
- 26% were withdrawn;
- 18% were dismissed upon withdrawal;
- 9% were struck out (not at a hearing);
- 7% were successful at hearing,
- The most common complaint disposed of was unauthorised deduction from wages.
Following the abolition of fees, the government implemented a phased a fee reimbursement scheme starting in October 2017. It estimated that the cost of Employment Tribunal fees refunds, including interest, would be £33 million. As at 30 June 2018, the total value of refund payments made was £10,615,044 but interestingly, in the quarter April to June 2018, the figure was £4,018, 265. This suggests that, after a relatively low take up initially, an increasing number of applications for refunds are now being made. Indeed, as large numbers failed to apply for a refund, the Ministry of Justice started writing to affected people to inform them of the scheme.
The increase in claims is also reflected in increased work for Acas which published its 2017/18 Annual Report in July 2018. Since the abolition of Employment Tribunal fees, early conciliation notifications have increased from 1,700 a week to 2,200.
So, what can employers expect in the coming months?
A continuing increase in claims is likely particularly those low level claims such as unlawful deduction from wages where previously, claimants may have been reluctant to pay the issue fee of £160. When fees were payable, between July 2013 and July 2017, there was a considerable reduction in the number of claims and many Employment Tribunal judges were allocated to other areas of work. There has been a recent recruitment drive for new Employment Tribunal judges but pending their appointment, hearing dates may be delayed or postponed.
With a potential, continuing increase in claims, employers need to ensure that they carefully follow employment law and best practice when managing their employees and that line managers receive the appropriate training to deal with the complex range of issue that can arise.
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