Are you keeping up with news on the employment tribunal system?

Written on 12 Sep 2014

This week has seen some significant announcements from Chuka Umunna, shadow business secretary, speaking at the TUC, regarding the future of the employment tribunal (“ET”) system. At the same time the Ministry of Justice has published the last quarter’s statistics for ET claims and ACAS has published its first quarterly update on the new early conciliation regime.

Labour announces an end to the current tribunal system

At the TUC this week Chuka Umunna announced that Labour proposes to replace the current ET regime with a system which ensured that affordability is not a barrier to workplace justice. The Labour party considers that the current ET system is unfair and prevents workers from obtaining the justice they are entitled to.

The detail of Labour’s plans is yet to emerge however it seems unlikely that Labour would abandon tribunal fees altogether and more likely that it would reduce or remove fees for those on low incomes.

Michael Rubenstein, writer on employment and discrimination law, has commented, “My understanding is that what Labour means by abolishing the current system is not abolishing tribunal fees as such, but abolishing the current system of fees introduced by the Tories and replacing it. A new fee system is to be based on ensuring that “affordability” is not a barrier to justice, but this can be addressed in different ways.” (see his full blog here).

Earlier this year the High Court rejected a plea by Unison, the public sector union to end ET fees but a further challenge to this decision is in place.

A fall in ET claims

The latest ET statistics released by the Ministry of Justice (here) show a 71% reduction in ET claims received in the period April to June 2014 compared to the same period in 2013. This appears to reflect the overall fall in employment tribunal claims since the introduction of tribunal fees in July 2013.

In addition, single claims are down approximately one third compared to the last quarter (January to March 2014). This is likely to be linked to the introduction of compulsory early conciliation on 6 May this year which may mean that there is a temporary delay in claims reaching the tribunal.

A leading blogger on this issue @wonkypolicywonk (Richard Dunstan) has produced a series of graphs (available on his twitter feed) which visually demonstrate how dramatic the decline in ET has been since the introduction of fees – he is now calling for a response from Jo Swinson, Minister for Employment Relations. Indeed, even the CBI’s Head of Employment Policy has stated in today’s Independent “The introduction of fees has deterred vexatious claims and those who seek to game the system. It’s a win for employers and employees. But we have never called for the level of fees the Government has introduced” and that fees should be set “well below the current levels”. (See here

The impact of ACAS early conciliation

These new ET statistics come on the back of ACAS’s first quarterly update on early conciliation published last week (here). The figures show that ACAS has received between 6,500 and 7,000 notifications a month since early conciliation became compulsory in May this year. These figures are higher than the average number of claims received by tribunals before the introduction of fees.

Of the claims notified to ACAS, 16.5 % were successfully settled and a further 19% indicated that they did not intend to pursue their claim following conciliation.

What next?

Whilst it is clear that there are real and significant issues that need to be addressed given the dramatic fall in ET claims, would the replacement of the current ET system help? This seems a dramatic move and details are still sketchy. No doubt in practice any new system would closely reflect what we currently have in place. Some encouragement can be taken from the early conciliation figures from ACAS. These suggest that a focus should remain on seeking to get employers and employees to focus on this relatively informal resolution pattern but subject to the proviso that those individuals who are unable to successfully resolve what on the face of it appears to be a genuine claim do have the opportunity to have that claim heard in a court of law and likewise that employers have the opportunity to defend themselves.