Employment Tribunal Trends: Are Tribunal Fees Coming Back?
The Ministry of Justice’s statistics for Q3 2018/19 (October-December 2018) indicate that there was no reprieve for the Employment Tribunal system in the final months of 2018, as Tribunals continued to be stretched by a heavy workload. Compared to Q3 2017/18, Tribunal caseload has increased by 20%; a figure that has been steadily creeping up since the abolition of Tribunal fees. Although multiple claimant claims fell by 78% this quarter (it is quite possible there was a surge of multiple claimant claims against a particular employer last year, which may have inflated the figures), disposals are up 35% and caseload is up 18% compared to the same period last year. The same upward trend can be seen in relation to single claimant claims, which are up 23%, disposals by 30% and caseload by 53%. The average age of claim at disposal has increased by a month from 26 to 30 weeks. While we are undoubtedly still witnessing the aftereffects of the abolition of Tribunal fees, some of the continuing upward trend may be attributed to unemployment levels that are at their lowest since 1975 and the associated rise in claims.
However, despite continuing upward trends, there are signs that the ever-increasing influx of new claims may be about to taper off. Q3 2018/19 saw a significant drop in refund applications following a surge after the July 2018 mailshot campaign, and it is likely that we will see even fewer of these going forward. Perhaps surprisingly, new claims have not yet reached the very high levels we saw prior to the introduction of ET fees. This is likely due, in part, to the significant role that ACAS Early Conciliation now plays in settling matters before they reach Tribunal. ACAS Early Conciliation became mandatory in May 2014, and in Q3 2018/19 29% of claims were settled via ACAS before reaching Tribunal. Due to the increasingly important role of ACAS and a reduction in refund applications, it is possible that we may see ET workload plateau in the months ahead.
In November of last year, the Ministry of Justice indicated that there is a very real possibility that a new, ‘progressive’ Tribunal fee structure will be introduced in the future. This could signal a further drop in new claims, although this is unlikely to be as dramatic as the one we saw in 2013. If these plans come to pass, the end may be in sight for the overburdened Tribunal system.
What does this mean for you or your business?
The number of claims received by employers continues to rise. We expect this trend to slow in the coming months, and, although it may be some time off, we may see a noticeable drop in claims if Tribunal fees are reintroduced. Employers can expect ACAS Early Conciliation to play an increasingly important role in settling matters before they reach Tribunal.
What do you need to be doing now?
The risk of receiving a claim remains high. Employers should remain alert and protect themselves by seeking legal advice as soon as risks are identified.
Recommended Reading
Supreme Court rules that employment tribunal fees were unlawfully implemented
Employment tribunal fees: the floodgates have opened
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.
