The publication last week of the employment tribunal statistics for July to September 2017 do seem to suggest that there is some truth to the rumours of tribunal offices dealing with a 100% increase in the number of tribunal claims. Despite the fact that fees were not abolished until towards the end of July, over the 3 month period as a whole the statistics show a 64% increase in receipts of individual claims - that equates to 7,042 claims over the 3 month period (1 month of which still had tribunal fees in place) compared to what had become a fairly steady 4,200 claims per quarter previously.
As such, employers need to face up to the increased prospect of tribunal claims being made. It has also been suggested that, for the foreseeable future, the UK Government will not be looking to act to replace the old regime, so we may be entering a more prolonged period of "free" tribunal applications. Bad news for employers.
While it may not be a great deal of comfort to employers, it does need to be remembered that the number of tribunal applications has been artificially low because of the impact of fees over the past few years. It may also be that a consequence of the withdrawal of fees is an increase in settlements via ACAS Early Conciliation - something that ACAS's own records show currently only happens in around 19% of cases.
But looking back on 2017, has it really been that bad for employers? If we look past the headlines the answer to that would have to be no. From an employer's perspective some eminently sensible and practical decisions have been forthcoming from the Courts and Tribunals. We had a number of employer friendly decisions from the Tribunal including a decision that gross negligence can equate to gross misconduct justifying dismissal and that a period of extended stress related absence is not conclusive of disability - something which many employers fear as soon as an absence becomes long term. This was followed up by an EAT decision confirming that employers can take account of previous conduct when considering dismissal for a new offence even when the formal warnings for the previous conduct have expired. In addition, the Court of Appeal found that an employee's bad attitude towards workplace change can amount to gross misconduct. These decisions should make even the more cynical HR practitioner feel that sense is being applied to employers' dealings with problematic staff.
2017 did bring a refusal by the Supreme Court to allow British Gas to appeal the Court of Appeal decision that results based commission should be included in holiday pay and, an EAT judgement that holiday pay calculations should include voluntary overtime. However, employers also had the EAT affirm their 2016 ruling that a series of deductions (for the purposes of an unlawful deductions claim) would be broken by a 3 month gap in payments - significantly limiting the potential liabilities for employers. However, holiday pay did take a more worrying turn for certain employers, earlier this month, in the case of King v Sash Window Workshop Ltd with an ECJ Judgement deciding that holiday pay claims could extend back indefinitely where an employer had "prevented" a worker from taking annual leave. In the case in question it was the fact that the worker had been mistakenly classified as self employed (and therefore not entitled to paid holiday) that led to him not taking the leave - another sobering thought for gig economy businesses in the midst of employment status claims.
In addition to the employment tribunal fee regime being declared unlawful, 2017 also saw the publication of the Taylor Review with its many recommendations. While the Government's response to this is still awaited it does seem likely that this is going to result in a concerted effort towards bringing clarity to employment status and rights. In reality, if both employer and employee know where they stand, that is to be welcomed.
2017 also brought headlines about the gender pay gap and the requirement to report on the pay gap came into force in April 2017. Even though by October - half way through the reporting year - only 148 if the estimated 9000 eligible organisations had reported their gender pay gap information, this requirement might significantly contribute to what has, to date, been a long running and seemingly insurmountable problem.
So while some may be looking into the new year with trepidation there is cause for optimism. Not only have employers benefitted from some robust Tribunal decisions, many ongoing issues that have caused confusion and expense in the past look like they may be resolved, at least to some extent, in 2018.