Are the numbers of Employment tribunal cases on the increase?

Answer: yes

Following the decision of the Supreme Court case of UNISON v Lord Chancellor [2017](1) , where it was decided that the introduction of Employment Tribunal fees were unlawful, employers and critics have been waiting to see whether this would have an impact on the number of cases.

At the recent National User Group of Employment Tribunals(2) , it was reported that the evidence shows that the number of claims are increasing to a higher level and some areas they have even doubled, although the full effect of the Union decision is yet to be realised.

It was noted at the meeting that the equal pay claims from the Employment Appeal Tribunal case Farmah v Birmingham City Council(3) , may also have had an influence on the numbers. This is due to the numbers of equal pay claims against single employers including ASDA and Sainsburys and that they cannot be included on the same ET1 claim form.

Also, Nicole Clarke from ACAS(4) reported there had been a spike in activity since the Unison case and they were receiving around 350 ET1's(5) per week and this had now increased to between 300- 700 per week.

The additional effects of the Unison decision:

1 Fees refund - It is estimated that the total refund would be in the region of £32.5m and the refund would also include 0.5% interest and would apply to the ET(6) and the EAT(7) .

2 Cases struck out for none payment – It was reported at the group that 7,500 cases had been struck out due to non-payment of tribunal fees, of which 285 had already been accepted by back into the system for judicial consideration.

These were being treated as if they had not been struck out at all, but the claimants might need to complete a new ET1 form merely to reconstruct the details of the claim. HMCTS was working to write to claimants to ascertain how they wished to proceed in respect of reinstatement of their claims.

3 Tribunal resources – The capacity of the tribunal system has been reducing over the last few years with judges retiring at a rate of around five or six per year and they have not been replaced. Also, there had been a loss of about one-third of non-legal members from the tribunal system in the last four years.

The President at the meeting was optimistic that a case for increased sitting days and/or additional judges could be made in due course once the trends were clearer. In the meantime, ‘Additional sitting days could be provided relatively easily, although that would then depend upon fee-paid EJs being ready and willing to recommit to sitting in the ET,’ he said.

Employers will certainly need to be alert to the risk of old claims being resurrected, potentially leading to difficult legal arguments given that tribunal are allowing them back into the system.

The important factor for employers moving forward is to ensure that they have robust policies and procedures, dealing with all issues in a prompt, consistent and fair manner.

I would certainly recommend that employers ensure that the staff designated to deal with disciplinary and grievance issues are properly trained, ‘You can’t afford not to train your staff.’

References

1. Court TS. R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) - The Supreme Court [Internet]. [cited 2017 Dec 18]. Available from: https://www.supremecourt.uk/cases/uksc-2015-0233.html

2. National employment tribunal user group minutes, October 2017 - GOV.UK [Internet]. [cited 2017 Dec 18]. Available from: https://www.gov.uk/government/publications/national-employment-tribunal-user-group-minutes-october-2017

3. Farmah & Ors v Birmingham City Council UKEAT/0286/15/JOJ, UKEAT/0289/15/JOJ; Fenton & Ors v Asda Stores Ltd UKEAT/0009/16/JOJ, UKEAT/0059/16/DM; Sainsbury’s Supermarket Ltd v Ahmed & Ors UKEAT/0227/16/JOJ [Internet]. [cited 2017 Dec 18]. Available from: https://www.employmentcasesupdate.co.uk/site.aspx?i=ed35574

4. Home | Acas [Internet]. [cited 2017 Dec 18]. Available from: http://www.acas.org.uk/index.aspx?articleid=1461

5. et1-eng.pdf [Internet]. [cited 2017 Dec 18]. Available from: https://formfinder.hmctsformfinder.justice.gov.uk/et1-eng.pdf

6. Employment Tribunal - GOV.UK [Internet]. [cited 2017 Dec 11]. Available from: https://www.gov.uk/courts-tribunals/employment-tribunal

7. Employment Appeal Tribunal - GOV.UK [Internet]. [cited 2017 Dec 4]. Available from: https://www.gov.uk/courts-tribunals/employment-appeal-tribunal