Unsurprisingly, one of the main reasons for this increase in claims is believed to be the economic recession the country has faced in recent times. History shows that as unemployment rises then so does the number of tribunal cases. If an employee is dismissed and struggles to find another job, then they are much more likely to resort to litigation. On the other hand, employees who quickly secure alternative employment are more likely to focus on their future and not their past.
However, the recession is only one factor. The figures also indicate a much greater willingness among employees to raise claims against their employers. The days of the stigma attached to tribunal complaints have long gone, particularly regarding claims arising out of redundancy situations. It is also worth remembering how straightforward it now is for an employee to lodge a claim with an employment tribunal, especially now that claims can be made online. The tribunal system was originally established with the aim that the process would not be overly legalistic and both employer and employee would represent themselves – avoiding the need for legal advisers. While the claim form is now more detailed, it is easy to complete and does not require the employee to provide much detail on their case or have much knowledge of the law.
However, the good news for employers is that the statistics show employers with legal representation are more likely to be successful in defending any claims brought against them. The bad news is that it is unlikely they would recover their legal fees from the claimant, even where they win their case. In addition, claimants can now secure free representation in relation to their claims from a whole host of sources including trade unions, local citizen advice bureaus and law centres.
Employers themselves are now more aware of the option of legal expenses insurance to cover themselves against the cost of employment tribunal claims, but may be deterred by the cost of the premium and take the view that it is not money well spent as they will never get a claim brought against them.
As regards the claim itself (as has always been the case with other forms of civil litigation that take place in the County Court and High Court) claimants are not required to pay any form of fee in order to pursue a case against their former employer. So when the employee completes their application online, there is no need for them to provide their credit card details or send a cheque. There has been some criticism that, as a result, even employees who have only a very weak claim against their former employer are unlikely to be deterred from at the very least submitting a claim, even if they don’t intend to see things through to a hearing. This means that the employer still needs to spend time and money to at least contribute a defence to the tribunal.
Clearly the tribunal system was not set up to encourage such claims, but the UK has become more litigious in recent years. The new Government is committed to a review of many aspects of legislation and has indicated that one such area will be tribunal procedure. Earlier this year, the Chamber of Commerce called for a review of tribunal procedure with a key focus to prevent the increasing number of vexatious and unreasonable claims. As a result, the future may bring submission fees for claimants and a requirement to seek legal advice prior to submission, as well as an extension of the grounds upon which costs can be awarded in favour of the employer where a claim is unreasonable.
However that being said, employers will be best placed to make every effort to avoid claims arising in the first place. Good practice in relation to any disciplinary or dismissal matters and ensuring that all policies and procedures are up to date will significantly reduce the possibility of a claim being brought, as will compliance with relevant legal provisions.
Jane Hobson is a partner in the employment team at law firm Weightmans