After the recent landmark Supreme Court judgment on ET fees, which confirmed the importance of access to justice, we have seen reams of commentary on the possible implications and expected outcomes for claimants and respondents, and their lawyers.
What about the in-house perspective?
At BT we conduct our employment tribunal claims in-house, including all advocacy. Our in-house team therefore has a unique take on the impact of the introduction of ET fees in 2013 and their subsequent withdrawal, both in terms of the number of claims received and the way they were conducted.
Did fees discourage claimants?
We didn’t see the number of claims drop off quite as dramatically as seemed to be true for the rest of the country when fees were introduced. There was certainly a downward trend, but we noted only around a 30-35% drop in claims (rather than the 66-70% mentioned in the Supreme Court judgment).
The reason for this disparity is unclear. One factor could be BT’s largely unionised workforce. Union support generally involves advice and legal assistance. In addition, unions often assess cases and help their membership with ET fees. Employees working in unionised workplaces may have been shielded from some of the negative effects of ET fees. Now that fees have been abolished, we’ll have to wait and see whether claims return to previous levels.
Did fees encourage withdrawal?
In our opinion, one possible impact of the introduction of fees was in the number of claims making it to a full hearing. It became the norm, following the introduction of fees, to see a claim withdrawn around the time the hearing fee became payable. This is nothing new; a claim is quite often withdrawn before the final hearing because the claimant decides not to go ahead. But can we say with any certainty that ET fees have affected that?
The tribunal’s statistics, based on national figures from 2015/2016, indicated that 55% of all claims received were withdrawn or settled prior to the final hearing. Unfortunately, a comparison with previous years is difficult since tribunals have changed the way they report this statistic. However, we consider it safe to assume that ET fees will have played a part in claimants’ decisions as to whether to withdraw pre-hearing. We also expect that the removal of fees is likely to have an immediate impact on the number of claims that go to full hearing.
Did fees reduce the number of weak claims?
In the world before ET fees, BT received its fair share of claims that lacked merit, in the same way as most large organisations. At that time, there was nothing to deter a claimant from bringing an unmeritorious claim. Following the introduction of fees, BT has seen these types of claims decrease, but it’s difficult to show a direct correlation.
It will be interesting to see whether the abolition of ET fees results in an increase in claims that lack merit and a similar increase in preliminary hearings to consider merits at an earlier stage. Anecdotally, we’ve heard that many organisations have seen a similar trend to BT in this respect. It is worth noting that BT’s statistics do not show an increase in the percentage of claimants winning their claims (something you might expect if the “weak” claims were being weeded out).
So what’s next?
There is now the huge uncertainty hanging over all employment law practitioners in relation to fees. ET fees have clearly burdened claimants over the last four years and undoubtedly led to an increase in the number of claims withdrawn. It is likely that we will see at least some correspondence with the various tribunal offices exploring whether those individuals who withdrew their claims for financial reasons, or accepted a settlement offer they now question, have any course for redress.
We suspect that the tribunals will face the immediate challenge of handling the huge volume of requests to refund fees. This will be coming at a time when the service is already suffering with administrative difficulties. There is also likely to be an indeterminable number of potential claimants who took the decision not to pursue a claim because the issue fee was prohibitive. The tribunal service may now also have to find the capacity to consider applications for claims that are well out of time.
And what of the possibility that a new fees scheme (one which does not prevent access to justice) may be in the pipeline? The Supreme Court judgment does not rule out the introduction of a workable fee scheme, but what form would it take?
These issues, along with all the other unresolved questions arising out of this judgment, will be keeping us up at night.