The Thick End of the Wedge

09 May

In March 2014, we saw the publication of the latest set of quarterly tribunal statistics, covering the period October to December 2013. Although they must be treated with some caution (for various reasons explained within the document) they provide either chilling reading or a resounding victory for business and enterprise, depending upon your viewpoint. Wherever you stand on the spectrum of political opinion, there is one area for clear agreement: those who predicted a significant drop-off in the number of claims commenced after the coming into force of the fees regime on 29th July 2013 have been proved absolutely correct.

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Sandals
In March 2014, we saw the publication of the latest set of quarterly tribunal statistics, covering the period October to December 2013. Although they must be treated with some caution (for various reasons explained within the document) they provide either chilling reading or a resounding victory for business and enterprise, depending upon your viewpoint. Wherever you stand on the spectrum of political opinion, there is one area for clear agreement: those who predicted a significant drop-off in the number of claims commenced after the coming into force of the fees regime on 29th July 2013 have been proved absolutely correct.

The picture could not be more sharply defined: in the period October to December 2013, employment tribunal receipts (new claims commenced in that period) stand at 9,801. That figure represents a 75% drop in new claims measured against the previous quarter. Standing alone, that percentage may not be particularly helpful, because the statistics demonstrate a huge spike in new claims up to the point at which the fees regime kicked in. Perhaps more reliable is the fact that new claims in the October to December 2013 quarter are down by 79% when measured against the same period in 2012. Put another way, we have 9,801 new cases in contrast to an average of 50,000 new claims per quarter in 2012/2013.

A quick analysis of disposals in the quarter shows that fewer than 1% of ET claims were disposed of by way of either a Rule 27 dismissal after consideration of claim form and response or a Rule 40(1) discontinuance. That is perhaps unsurprising, because these methods of disposal are novel, both to tribunals and to tribunal users.

You may have seen a recent piece in the Daily Telegraph (26th April 2014) in which Matthew Hancock, the Minister for Skills and Enterprise, celebrated these new figures. “British business” he wrote “has been forced to battle a silent job-killer in recent years”. In his view, the decline in new claims post-fees regime demonstrates that: “Below the radar – unnoticed by many – firms big and small have fallen victim to the insidious growth in vexatious employment tribunal claims.”  He went on: “Unscrupulous workers caused havoc by inundating companies with unfounded claims of mistreatment, discrimination or worse. Like Japanese knotweed, the soaring number of tribunal cases dragged more and more companies into its grip, squeezing the life and energy from Britain’s wealth creators.”

It is difficult to square that assessment with another set of figures published in the recent statistics. An employment tribunal has the power to make costs orders in cases where a claimant has, amongst other things, acted vexatiously in bringing a claim. Yet it is clear from the statistics that it is still in only a tiny proportion of cases that the tribunal – the members of which, it might be thought, would be the best judge of the merits of a case -  makes an award in favour of a respondent. In only 522 cases in 2012/2013 was there an award of costs in favour of a respondent, for whatever reason. In the same way that access to justice for a claimant does not necessarily equate to a judgment in his or her favour, the dismissal of a claim does not equate to vexatious conduct in the bringing or pursuing of it.

Peter Savill

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