Prevention rather than cure with Employment Tribunals

20th March 2018

The provisional employment tribunal statistics for the period October to December 2017 have been published by the Ministry of Justice.   They show that single claims to the tribunals have increased by a whopping 90% compared to the same quarter in 2016.  This is following the abolition of employment tribunal fees from 27 July 2017 after the Supreme Court’s decision in R (on the application of Unison) v Lord Chancellor 2017.

The figures are for the first complete quarter (Q4) that followed the abolition in July 2017 and show the dramatic increase to 8,173 single claims from 4,307 claims in Q4 of 2016.  This Q4 2017 figure being the highest recorded since Q3 of 2013, when tribunal fees were first introduced.  The effect on the tribunals service itself has also been significant with the increase to the ET’s outstanding caseload standing at 66%.  This backlog resulting in all parties waiting longer for cases to be heard.

The statistics also show that there are approximately 2,500 to 3,000 new claims now being issued every month though this is yet to rise to the number of claims which were being issued before the introduction of fees (around 4,000 to 5,000 new claims each month).

Whilst still a high figure, it seems that the mandatory ACAS Conciliation Scheme (which remains in place) introduced as part of the fee scheme seems to have taken some effect.  It’s aim is to alleviate the level of claims by encouraging settlement between parties without the need to revert to the tribunal.  This coupled with the potential public lack of awareness around the abolition of fees may have some part to play, but of course this lack of awareness is difficult to really measure.  Q4 figures indicate that whilst claims aren’t as high as prior to fees, they certainly look set to be at a much higher level than with fees payable.

So, what does this mean for employers?

The reality is that the likelihood of you receiving a claim from a disgruntled employee, a former employee or even job applicant has almost doubled since the same time last year – a frightening thought for any employer.

It has been all too easy for employers to relax their employment and dismissal practices, relying on the previous fee structure to “put off” potential claimants – waiting for a “David and Goliath” scenario where finances are concerned.  The time for cutting corners whilst viewing the risk of claims as low has certainly passed.  With the average cost to an Employer estimated at £8,500 by the British Chamber of Commerce as far back as 2011, just to deal with a tribunal case before any award,  it is something with which employers simply cannot take a risk.  Not to mention the stress and management time involved dealing with claims, particularly where claims arise from negligence on the part of employers not following their own procedures.

So, what can you do?

The answer is simple – prevention is better than cure. Start by taking a fresh look at your current policies and procedures to ensure that you are complying with both the law and best practice – including the ACAS code of Practice on Disciplinary & Grievances Procedures.  But this is not enough – policies are great, but it is what you are doing on the ground, in reality with your teams that really matter.  Have you trained your line managers on how to deal with and address common workplace issues?  Where do they go if they experience problems? Where do you as employers go if you come across any complex issues simply not covered by your standard policies and procedures.

Yes, there are products such as legal expenses insurance out there to assist with tribunal claims – but have you really read the small print?  You will more often than not be required to have consulted any insurer at the start of any issues, rather than when everything goes wrong – more importantly you will be required to follow their advice, regardless of the fit for your business to ensure any policy pays out.

The message to employers is to stop and think – don’t cut corners.  Plan, train, inform and review how you work, not just at the top but all the way down and remember, prevention is always better than cure.

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