Experts clash over huge drop in tribunal claims



Have fees or changes to employment rights led to a fall of 9,000 cases a month – and is it really blocking access to justice?

The number of tribunal cases being brought for workplace discrimination or unfair dismissal has fallen dramatically over the last three years, according to analysis by the TUC. But there is little consensus about the cause of such a drop, and whether it represents a backward step in access to justice at work.

The TUC said an average of 7,000 people each month filed tribunals against their employer during 2015-16. The equivalent figure three years earlier was 16,000.

Unfair dismissal claims fell by nearly three-quarters (73 per cent) over the period, as did sex discrimination cases (down 71 per cent). Race discrimination claims declined by 58 per cent and disability discrimination by 54 per cent.

TUC general secretary Frances O’Grady said the introduction in 2013 of a fee of up to £1,200 for bringing tribunals was “pricing out thousands each month from pursuing cases”. However, Tim Goodwin, associate solicitor at Winckworth Sherwood, said the reduction in unfair dismissal claims was also down to the doubling of the qualifying period of service required before employers could take a case to a tribunal.

He said: “While I understand where the TUC is coming from, to ascribe all of that drop to the fee is not correct. Because at approximately the same time as fees were brought in, the amount of service you needed before you were entitled to bring an unfair dismissal claim increased from one year to two years.

“Today’s workforce is far more mobile than 10 years ago, with a lot of employees moving jobs far more frequently than they used to. It means there is a very significant amount of people who don’t qualify to bring an unfair dismissal claim at all.

“Yes, the charges have resulted in the number of cases going down, but the reason we are seeing far fewer unfair dismissal claims rather than fewer claims across the board is also because a lot of people have had their rights effectively taken away from them.”

But O’Grady said the introduction of the fee regime was the direct cause of the drop in cases.“These figures show a huge drop in workers seeking justice when they’ve been unfairly treated. Now bosses know they can get away with it, discrimination at work can flourish unchecked and people can be sacked without good reason,” she claimed.

“The evidence is there for all to see. These fees – of up to £1,200, even if you’re on the minimum wage – are pricing out thousands each month from pursuing cases. Theresa May has repeatedly said she wants to govern for ordinary working people. Here is a perfect opportunity. She could reverse employment tribunal fees, and make sure workers can challenge bad employers in court.”

The purpose of introducing fees was to help reduce frivolous claims, but Goodwin said the proportion of successful claims had not shifted significantly since the fee was introduced.

“If there were huge number of frivolous claimants who were put off by fees, that number would have changed and we would see far more successful claims. As it hasn’t changed significantly, that suggests frivolous claims aren’t being deterred,” he said.

“From personal experience, I am not seeing many of these claims with low merit – particularly where individuals are unrepresented and have no legal support – being deterred.”

Goodwin suggested the government introduce independent legal advice for individuals before claims are filed. The government has said it is increasing the take-up of mediation and other forms of dispute resolution. The TUC, meanwhile, urged the Ministry of Justice to publish its review on the impact of tribunal fees, which was due by the end of 2015.

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