From July 2013 aggrieved employees were required to pay a fee to first litigate a claim and then if the matter is to go to hearing a further fee – both of which are significant at up to £1200 in total. Article by Vanessa James, Partner and Head of Employment and Immigration, SA Law LLP.
In the subsequent period tribunal claims have dropped by a worrying amount with some sources quoting a fall of as much as 90%, to the extent that groups who support workers (i.e. Citizens Advice and unions) are claiming the fees are prohibiting access to justice. Business Secretary Vince Cable is now undertaking a review to determine whether fees have prevented employees pursuing their reasonable and well-merited claims.
There are other important factors affecting the level of claims. Just prior to the introduction of fees the qualifying period for an employee to bring a claim for unfair dismissal increased from one year to two. Employers therefore have now had more time to decide whether a new staff member is suitable, all of which has occurred over the same period the fees have started to bite. It is reasonably common for employers to not make up their mind about a new employee until after 12 months. This will have inevitably meant those staff dismissed between one and two years’ service who could previously claim are now barred from doing so.
The compulsory pre-action ACAS conciliation came into force from May 2014, requiring an employee to register their claim with ACAS for one month prior to issuing it. If they do not go through the process then they are prevented from lodging the claim with the Tribunal. Many employers who, under the old regime, would not have offered money to settle claims initially are now encouraged to consider this before the claim is even issued.
The economy is also improving with unemployment figures at record low levels. The boom time for Tribunals came in the period of economic downturn when redundancy levels were higher and dismissed employees found it a longer process to get work, thereby making the option of a tribunal more attractive. A significant portion of a tribunal award for unfair dismissal is made up of future lost income and so those who easily find new employment in a buoyant market are less likely to pursue claims worth less in compensation. It is going to be very hard for Vince Cable to navigate all of the statistics and factors relevant to the decline in claims. There are also treasury issues as budgets would have been set against a certain level of fees to sustain the cost of the tribunal service and so the unexpected reduction will leave gaps in budgetary spending.
At the time of introducing fees the concept was sold to the public as discouraging the perceived evil vexatious litigant from depleting the resources of the credible employer. Yet perhaps not enough attention was paid to the countless groups of mistreated employees who sought justice through Tribunals and who now appear to have been discouraged from pursuing legitimate and credible claims. There are clearly still groups of the workforce who need protecting and most will know a family member or a friend discriminated against, or have even experienced first-hand discrimination on maternity, race or age grounds. It seems only by personalising the impact of unfair treatment in the workplace that balance can be re-established as it is clear mistreatment has certainly not disappeared overnight.
