The Government's Review and Consultation on the introduction of employment tribunal (ET) fees concludes that there has been little change in the outcome of cases which progress to a hearing in the ETs. This could be taken in support of either side of the debate – that ET fees have failed to deter claims that had no merit, or, conversely, that actually very few people issue ET claims without merit anyway. In our experience the majority of claims without merit did not make it to a final hearing in the ET even before the introduction of fees.
However, the figures do actually show an increase in unsuccessful claims from just under 20% in 2012/13 to nearly 30% in 2015/16, while there is only a very small decrease in successful claims of just over 3%. This is bad news for the 'success' of ET fees. It could mean that where an individual has had to invest £1,200 in the cost of a hearing as well as legal fees, they are in fact less willing to settle than they would be if it had been free or cost less. The government's review appears to gloss over this point.
What is interesting is that the government's figures suggest that the number of employment law disputes have actually gone up since fees were introduced. In the last year before fees, there were 78,000 claims notified to ACAS or issued in the ET. While there has been a radical drop in ET claims since fees were introduced, when ACAS early conciliation notifications are added in, the total figure is 92,000 in 2015/16.
It is slightly encouraging that the government has marginally increased the income threshold for those claiming Help with Fees (to around the equivalent of a person earning the National Living Wage) and scrapped fees for claims against insolvent employers which are paid by the National Insurance Fund.
However, it is the absolute minimum the government could do in the face of the evidence about the fall in claims and the number who do not go on to make a claim because they can't afford it. The government's conclusion that in reality such claimants could afford to pay by reducing other areas of non-essential spending appears to have no evidential basis whatsoever.
It will be interesting to see what the Supreme Court makes of it when UNISON's challenge is heard in March. Both the government's review and the failure of UNISON's case to date, centre on the fact that there is not enough concrete evidence that real individuals have not pursued good claims because they can't afford it. Of course, proving a negative like that will be far from easy.
Natalie Painter is senior solicitor at Blake Morgan