Seems what every employer had feared, has happened. Since the Employment Tribunal fees were abolished, the number of claims being filed at the tribunal has significantly risen, at a rate that tribunals are finding a struggle to cope with. The resources at tribunals to deal with new claims expediently is providing difficult and employers are increasingly finding it frustrating as they are prevented from drawing issues with former employees to a close quickly.

This is particularly frustrating where the fee free claim is made as a strategic move by a disgruntled employee who may not have a strong case, but who is extremely keen to coax a busy employer into paying more by way of settlement monies. This ‘tactic’ is exactly the reason why the fees were originally introduced. The introduction of fees between £250 and £1,000 saw a drop of 70% in claims at the employment tribunal. It did what it said it would, of deterring people with unscrupulous claims, bothering to file one.

However, as the Supreme Court (SC) rightly identified, this was not consistent with the rights of individuals to make a claim. Last year, in R (on the application of UNISON) V Lord Chancellor [2017] IRLR 911 SC, the SC found that it was unlawful as it prevented access to justice and was indirectly discriminatory, for it to be more expensive for someone potentially with a protected characteristic to make a claim.

Claims for fees paid which should be reimbursed are abundant, but so are the future claims against employers, who have recently parted ways with employees. Single claims have doubled, showing a rise of 130%. Multiple claims have they’ve quadrupled to 42,700, showing an increase of 34%.

The Tribunals with their current resources are struggling and the Ministry of Justice (MOJ) recognise this. It’s now making promises to recruit 54 new employment judges to try to ensure cases are heard faster, more frequently and judgment can be reached earlier.

However, for those employers in the meantime, who have received an ET1 from an employee (in an average time of 6 – 8 weeks following the employee’s filing at the tribunal), the waiting game continues. While it may seem unfair, a “get-out” strategy may be to take a commercial call and settle it. For others, this may not be an option as, to set a bad precedent like this would not be right for the approach for any future employees’ termination of employment.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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