A government scheme to prevent ‘unmeritorious claims’ in the employment tribunal court has gathered further proof it was unfair and unlawful in the four years it was in place, according to a senior lawyer.
Data published by Ministry of Justice shows that the proportion of claims that were successful in 2017/18 at hearing are higher than each year in which fees were in place.
According to the MOJ, 10 per cent of cases were successful in 2017/18, the highest percentage in each year since 2013 when fees were introduced, the lowest being three per cent of cases in 2014/15.
Paul McFarlane, partner at law firm Weightmans LLP, told Safety Management: “The recent figures confirm earlier evidence on the impact of fees published by the Ministry of Justice in January 2017, ‘Review of the introduction of fees in the Employment Tribunals: Consultation on proposals for reform’ that fees had failed to deter unmeritorious claims and did not appear to have resulted in more Acas settlements. This review was relied on by the Supreme Court last year when it held ET fees to be unlawful.”
Figures also show that the number of single claims going through tribunal courts system have risen dramatically. For the last available period, April to June 2018, claims rose by 165 per cent to 10,996 claims compared with same period in 2017, which was before fees were abolished.
McFarlane, who is also chair of the Employment Lawyers Association’s Legislative and Policy Committee, commented: “The significant rise in claims coupled with not enough resources (judges and administrative staff) means that the system is currently under the greatest strain I have seen in my 20 plus years of practice.
“A recruitment exercise to appoint 54 full time equivalent Employment Judges is currently underway. However, these new Judges will not be in post until September 2019. I do not see things improving until sometime in 2020 at the earliest.”
The government said that charging fees of up to £1,200 would help deter ‘unmeritorious claims [that] consume valuable judicial resources’.
The Supreme Court said that the scheme broke fundamental legal principles before abolishing it finally in July 2017: “The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice,” said the judgment.
As part of the Supreme Court decision, all fees paid to date have had to be reimbursed to employees.
Over £10.6m has been paid in refunds to 12,400 individuals who were charged fees over the fees scheme’s life (July 2013 to July 2017).
The data was published in a series of updates by the MOJ on 13 September. The next update of employment tribunal claims for Q3 of 2018 is due on 13 December.
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