Lets draw breath and consider what the future holds. The statistics are estimates and are skewed by the fact that they include class actions. The percentage of individual claims have dropped by around 63%. Tribunal fees paid by Claimants were introduced on 29 July last year. The statistics only record accepted claims. It is thought that some cases have not been counted in the initial figures because of the time taken to process Tribunal fees or in dealing with remission applications.
Admittedly the figures are provisional but the end result will still show a reduction of over 50% in individual claims.
However, the size of this reduction may be temporary. Although Unison was unsuccessful in its judicial review to abolish fees the door will be wide open for reform if the dramatic drop in claims is broadly verified. The court, in the Unison case, strongly hinted at this in its decision as it felt that there was insufficient evidence to support the union's case. The decision was issued before the above statistics were released. Even leaving aside weak claims the figures suggest that vast numbers of Claimants with arguable cases are being denied access to justice. The feeling is that the government may have to move to reform the system without Unison having to pursue the appeal which it has lodged.
Not surprisingly few weak claims are being lodged. A sift process was introduced to enable Employment judges to weed out such claims at an early stage. However, the statistics show that less than one per cent of cases were not allowed to proceed at the sift stage between October and December.
Interestingly, individual Claimants who did bring claims between October and December lodged more multiple claims. The average rose to 2.5 claims per Claimant which is higher than previous quarterly figures. There could be several reasons for this. Some Claimants may have been encouraged to adopt the "kitchen sink" mentality- "If I'm having to pay fees lets throw in everything". Likewise the cap on the unfair dismissal compensation of one year's pay or £74,200 (moving to £76,574 as of 6 April) for high earners may be encouraging more uncapped discrimination claims. The danger is that if this includes spurious claims then this is risky from the Claimant's perspective as the Tribunal rules have been clarified to allow a party to seek expenses in relation to only a part of a claim.
Earlier statistics showed that the number of appeals to the Employment Appeal Tribunal are down by one third. If either party wants to lodge an appeal they have to pay a hefty £1,200. However, the reduction in appeals is not surprising. A party can only appeal on a point of law. However, a lot of disgruntled litigants lodge appeals which dispute the Tribunal's factual findings. This does not provide a ground of appeal. It is common for over 35% of appeals to be rejected at the sift stage in the EAT. As a result it is not surprising that there has been a fall off in the number of appeals
I suspect that the end result will be that the fee system will be reformed and that the number of Tribunal claims will rise but not to the pre Tribunal fees level. If a reformed system deters weak claims then that will be a fairer system. The Ministry of Justice has made it clear that it is charging fees to help save you and me money as taxpayers. However, whilst there is a need to weed out weak claims Claimants should not be discouraged from pursuing legitimate complaints because the "fee hurdle" has been set too high. That is the hard balancing act that the government is likely to have to address - sooner rather than later.