The Senior President of Tribunals published his annual report yesterday. The Report looks at the key cases from the last 12 months and spots trends across these, including employment law cases and trends.
The report highlights the impact the introduction of fees has had on Employment Tribunals and Employment Appeal Tribunals.
The number of applications received for Employment Tribunals has gone down to 20% of what it was before the fee regime was introduced. This has, in turn, reduced the number of applications to the Employment Appeal Tribunals to 55% of the previous year’s level in the London office and to 40-45% in the office in Scotland.
The report has also noted how over the last five years the percentage of people having representation in employment tribunals has decreased from 60% to 40%. The figures do not show whether the number of people representing themselves has further increased since the introduction of fees, but alongside other funding cuts it would appear likely to be the case.
The report highlights a trend that employment tribunal hearings for people without legal representation takes longer. This means that despite fee charging coming into place there is now, proportionately, more work for judges and requiring additional resource to assist litigants in person.
The report suggests that without the fee introduction, the Employment Appeal Tribunal would have struggled to cope with appeal levels based on their limited resources. In other words, squeezing out appeals with financial disincentive allows the EAT to keep on top of their workload. If fees are abolished in the near future (we say with continued hope), this is a clear cry for help for additional resource to be channelled to the EAT.
So whilst fees and funding cuts have potentially eased the workload for the Employment Appeal Tribunal, fewer appeals (and claims) are being lodged than before, this we already know. There is no evidence to suggest that only employment claims without merit are being discouraged given that the numbers of claims that win at full hearing in the Employment Tribunal remains constant.
We are yet to see if the statistics in relation to appeal outcomes also remains consistent, particularly as only a “handful” of appeal applications are being taken out of the process via the sift.
Due to the early conciliation scheme anyone wanting to bring a claim to the Employment Tribunal must now contact ACAS first. The job of ACAS’s Early Conciliation Scheme is to help reconcile workplace problems before litigation is commenced. Initial indications suggest, according to the President of the Employment Tribunals (England and Wales), Brian Doyle, that Early Conciliation is likely to have had the same effect without the introduction of fees.
There is also anecdotal evidence that in recent times claimants have been more willing, where possible, to sue their employer or former employer in the High Court. However, the UK Government’s recent proposals to massively increase fees for issuing claims at High Court are likely to discourage, if not completely put the kibosh on that being a realistic option for an individual with no job and no income.
For employment claims over £200,000 the proposed fee will be an eye watering £10,000. In other cases, the fee will be 5% of the amount claimed. It remains very unclear if there is any good evidence base for such a dramatic increase to fees. The lasting impression is that we are now living in a generation where access to justice has never been more difficult, particularly for the more vulnerable in our society.
It is both wrong and dispiriting that in the year marking the 800th anniversary of Magna Carta, access to justice should be taking a battering.
Ivor Adair is a Senior Employment Solicitor at Slater and Gordon Lawyers UK.
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