The Supreme Court’s ruling last July that the introduction of fees into the employment tribunal system in 2013 was unlawful led to the tumultuous phase we are currently going through. The introduction of the fees had caused there to be a dramatic – and for some traumatic – fall in the number of claims.
That meant, for example, that the number of claims alleging sex discrimination fell by some 85 per cent. On average, claims fell across the board by about 65 per cent. Small claims virtually disappeared as they were rendered completely uneconomic by the need to pay a significant and disproportionately high fee to access the system. Most such claimants chose to bite their lip and walk on.
But given the collapse in the number of claims, it was not just would-be litigants who walked on. Part-time and salaried judges who had hitherto heard these cases chose to do so as well. At the same time, administrative resource available to the system was significantly reduced. In an era of cuts, there was no point in maintaining staff levels as previously, when so few claims were being brought.
Things have now turned on their head. The Supreme Court has declared that the whole fee scheme was unlawful and should never have been introduced in the first place. But where has this left us? Is everything just going to return to the status quo ante?
Of course not. Employment tribunals are now facing real resourcing problems and these may get worse before they get better. Although in the last few months we have been relying on informal feedback and comment, and the occasional bleak report at local tribunal user meetings, we now have official confirmation of the scale of the problem.
The most important open discussion of these matters on a national level occurs at the Employment Tribunal National User Group. What was reported at its most recent meeting was dramatic. Based on five months’ worth of management information since the Supreme Court’s decision in July, and seeing trends across the country that were “stable and consistent”, employment tribunal president Judge Brian Doyle confirmed that the number of claims introduced into the system had doubled. It will take an increase of some 200 per cent to get back to pre-2013 levels of activity, but this is undoubtedly a step change from before.
Has the government prepared for this development? Unfortunately not. Although there are welcome signs that some government circles do realise that they need to act to avoid meltdown, the fact is that we now have reports from our members that the system is already under intense strain.
In London South, for example, it is estimated that, for a discrimination case that may last two or three days, the parties will have to wait until late 2018 or early 2019 for it to be heard. This includes claims for sexual harassment – a prolific issue in the current climate – but these delays are being felt right across the system. The Employment Lawyers Association is currently surveying its members to take more feedback at this time, and the results, which are keenly awaited, will be reported in due course.
Efforts are undoubtedly being made to try and get on top of the problem. Doyle has made important indications that a recruitment drive is underway. However, the reality is that the cavalry (if it is to be such) may arrive long after the crisis develops. Salaried judges are generally hired from the ranks of part-time judges but, because of the damage caused to the system by employment tribunal fees, most have moved on.
Many judges are being called back from the other jurisdictions to which they have moved, but it is a cumbersome process and the reality is that, unless the government now commits to delivering significantly more resource into the process, it is going to be at least 12 to 18 months before replacements arrive, and the system is properly able to cope.
Richard Fox is a partner at Kingsley Napley and committee member of the Employment Lawyers Association