In July 2013 the Government introduced tribunal fees which claimants had to pay in order to proceed with their claim or appeal in the Employment Tribunal or Employment Appeal Tribunal. Immediately, the number of claims received in October to December 2013 dropped to 79% below the same quarter of 2012.
In July, the Supreme Court ruled the fees were unlawful. The latest tribunal statistics only extend to June 2017, so we don't yet know the immediate impact of the fees' abolition. If the removal of fees sees a revival of pre-2013 claim volumes, tribunal preparation and attendance is likely to become a more common feature of the work of HR and in-house legal.
In the meantime, the Employment Tribunal is refunding those who paid the fees for their claims or covered the fees in their final agreements. The full application refund scheme was launched on 16 November 2017. In addition, claims which were dismissed due to non-payment of fees will be reinstated if the claimants apply, which – depending on the appetite from former Claimants - may see an immediate increase in live claims. For employers, it is important to be aware of this risk, and retain all relevant documentation pertaining to any historic claims that were dismissed before or when final hearing fees became due.
A system of Judicial Assessments has been piloted in England and Wales over the last year which may be introduced in Scotland too, as was suggested in the Scotland Employment Tribunal User Group meeting in the spring. As the scheme is in a relatively early stage south of the border, no final decision has been taken with regard to Scotland.
In some respects, the JA scheme has been a controversial development. The assessments are meant to be an impartial confidential assessment by a Judge at an early stage of the process of the "the strengths, weaknesses and risks of the parties’ respective claims, allegations and contentions". This assessment requires the consent of both parties and usually takes place after the issues have been clarified and formal case management orders have been made. The Employment Judge conducting the Judicial Assessment will not normally be involved in any further part of the proceedings, particularly the final hearing.
The intention is that Judicial Assessment can be a powerful tool for both claimants and respondents. However, as it may take place without a full view of the evidence in the case, its value and accuracy may be reduced. Potentially an unduly optimistic or pessimistic assessment could inappropriately influence settlement discussions yet to take place. Additionally, such Assessments may be particularly controversial in discrimination claims which can be subtle and very fact sensitive making it difficult to make robust assessments without a full view of the evidence.
The UK Government has issued a response to its consultation paper on reforming the employment tribunal systems, with recommendations in relation to the digitisation of the system, including potentially the online consideration of certain claims. However, in the meantime, the UK Government is committed to transferring the functions of the employment tribunal system to Scotland, though the timing and approach to the transfer remains under discussion and has not been finalised between Westminster and Holyrood. So the relevance of the proposals in the Scottish context could be affected by the devolution process and, in any event, it is understood that employment tribunal and EAT reform are planned to come at the end of the whole Justice system reform process so may be several years away.
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Lesley Murphy, Partner
0141 227 9392 | firstname.lastname@example.org