UK employment law provides an excellent system of rights. However, these are devalued if some rights cannot be effectively enforced. The fundamental issue at stake is the denial of access to justice. See my earlier Blog - Employment tribunal fees - a short lived system
The government introduced the fees system on 31 July 2013. This was partly designed to curb the number of spurious claims. It also saved you and me money as taxpayers by helping to make the system partly self funding.
Unison's judicial review challenging the fee structure was dismissed by the High Court. However, their action was arguably premature and based on limited evidence as to how the new system was working. The judge stated that if there was an ongoing significant reduction in claims then this could result in Parliamentary reform without the need to hear an appeal which Unison has since lodged.
Some Claimants do not pay fees under the new remission scheme but subsequent statistics reveal that the number of remissions granted are low.
The Unison case was heard before the statistics for October to December 2013 revealed an estimated 79% drop in total claims compared to the same time the previous year. The January to March 2014 figures now show a 59% year on year reduction in single claims.
This is not all down to weeding out weak claims or improved internal mediation.
These latest statistics follow the day after the release of a separate 280 page Employment Tribunal Application Survey for 2013. This analysed the responses of Claimants who brought claims before Tribunal fees were introduced. 49% stated that if they had required to pay a Tribunal fee this would have influenced their decision to raise a claim. The majority were lower paid employees.
These combined statistics will increase the pressure on the government to reform the system and may be used by Unison in their appeal. The next statistics for April to June will be skewed by the introduction of early conciliation. Claimants now require to seek to conciliate their disputes before they can raise a Tribunal claim which delays the raising of claims. This will impact the next set of figures which will not be available until around September.
Will the government consider changes before then? The Queen's speech on 4 June was silent on the issue. We are heading towards the summer Parliamentary recess. Tribunals will in most cases now grant the successful Claimant an order to recover their Tribunal fees from the unsuccessful party. However, it is likely to be argued that this is not enough as many Claimants (particularly lower paid) are still dis-incentivised from bringing legitimate claims because fee levels are set too high.
There are strong murmurings from Westminster that the system is being closely scrutinised. It has been suggested that Labour would abolish the fees. The appeal in the Unison case is due to be heard sometime between 10 September and 10 December. If the government loses the Unison action it has promised to repay the Claimants' full fees. If that occurred the real losers would be the vast number of potential Claimants who did not raise legitimate claims since July 2013 because of the concerns over the cost. Would some try and bring late claims? That is a possibility but I believe they would have an uphill struggle to convince a Tribunal to allow their claims to be lodged late in these circumstances.
What is clear is that the current government will not abolish the fees system. At best they may amend it. My view is that it is not a question of "if" but "when" that will happen. Watch this space.
The statistics are available at the following link:-