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Outstanding tribunal claims up 130 per cent since fees were abolished

14 Sep 2018 By Claire Toureille

First full year of statistics after Supreme Court decision confirms system is slowing significantly

The outstanding caseload of employment tribunals has more than doubled over the past 12 months, according to official statistics which indicate that the first full year since the abolition of fees for tribunals has led to a huge uplift in cases.

The Ministry of Justice said the number of outstanding single cases was 130 per cent higher in the second quarter of 2018 than the same period in 2017, leading to fears among employment lawyers that the system is struggling to cope with the influx in claims and that cases are taking longer to come to justice.

The overall number of single claims received in England and Wales was also up significantly: 10,996 claims were made between April and June this year, compared to the 4,241 complaints received during the same period in 2017, a rise of 165 per cent.

“Without the requirement to pay a fee to have a case heard, more employers are likely to face challenges against employment practices, such as wage deductions, even where the overall financial loss to the individual is small,” said Andrew Willis, head of legal at CIPD HR-inform. 

The increase – which confirms a trend seen in earlier MoJ statistics – has implications for workloads inside businesses as well as within the courts system, Willis added: “For HR departments, it is likely the increasing number of claims will result in more administrative resources being allocated to help prepare for tribunal hearings, rather than focusing on the current workforce, as employers need to ensure they are taking the administrative side of tribunals seriously to help present a cogent and clear defence.”

Dan Begbie-Clench, partner at Doyle Clayton, told People Management that the increase in claims would lead to other costs for employers: “In our experience, tribunals are under-resourced to deal with the increased volume of litigation and this leads to other costs; claims are now taking longer to work through the system, so employers are having to devote more administrative resources to dealing with them over a longer period.”  

In June, the Judicial Appointments Commission launched a recruitment exercise to find 54 salaried employment judges in an effort to meet the demands of the fee-free system, but Wills said it was unlikely it would have a “significant impact on the backlog within a quick time frame.”

A spokesperson for HM Courts & Tribunal Service said: “Additional sitting days have been allocated to cope with an increased number of receipts and a judicial recruitment campaign is underway.

“Performance and resource levels are kept under close review, to ensure changes in demand are met.”

Tribunal fees were abolished in July 2017 after the Supreme Court ruled them unlawful and unconstitutional. The overall number of claims brought to employment tribunals rose by 66 per cent in the first quarter following the Court’s decision, while single claims rose by 64 per cent. 

The government took immediate measures to stop charging fees, which could total up to £1,200 per claim, and vowed to refund fees to claimants who had paid them between their introduction in 2013 and 2017. 

However, the then lord chancellor David Lidington said in October 2017 that the government intended to bring back employment tribunal fees in another form. 

“The key lesson that I took from the judgment was that fees are… a reasonable way in which to secure a contribution towards the running costs of the courts and tribunals service but that, in setting the level of fees, the government needs to be very careful in regard to questions of access and affordability,” he told the justice select committee. 

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