The government is under mounting pressure to reform the system. The sharp decline in the number of claims due to the levels of fees paid by Claimants has discouraged legitimate claims. It will be argued that the current system is denying access to justice.
The scheduling of the appeal is timely as there will be at least three additional sets of statistics which the union's solicitors will be able to refer to which are published this month.
On 3 September Acas released the statistics of the number of notifications they have received under the new Early Conciliation process.
On 11 September the estimate for the quarterly figures for claims received by the Employment Tribunal from April to June 2014 will be published.
That same day the revised figures showing the annual number of claims received by the ET for the period from 1 April 2013 to 31 March 2014 will also be announced. These will provide accurate figures for the union to use in its appeal.
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 estimated figures showed a 59% year on year reduction in single claims. These statistics were not available when Unison's judicial review was heard. They will be superseded by the adjusted figures to be released on 11 September.
This week's statistics on Early Conciliation also make interesting reading. This process now encourages parties to seek to settle their claim before a claim is lodged. It was introduced on a voluntary basis on 6 April and became compulsory with effect from 5 May. This therefore means that an accurate analysis of the trend in claims being lodged will be difficult to fully assess for some time.
The figures do show that between 6 April and 30 June 2014 there were a total of 17,145 notifications made to ACAS regarding early conciliation. This included all individuals who wanted to bring ET claims in May and June but not April when the system was voluntary.
This can be compared to the 44,335 Employment Tribunal claims received between April-June 2013. This is not a like for like comparison but does broadly indicate the continuing significantly lower level of potential claims compared to the same period the previous year.
What does this mean for the forthcoming appeal?
Unison's High Court challenge was dismissed as it 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. However there has been slow progress in seeking that reform.
If the government loses the Unison case it has promised to repay the Claimants' full fees. If that occurs 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.