Donald Mackinnon, director of legal services at Law At Work reflects on the effect of fees on employment tribunal cases.

Since the introduction of Employment Tribunal (ET) fees, the number of single cases has dropped by 67 percent and multiple cases by 72 percent. Less than a year later, early conciliation through Acas was made compulsory. From April 2014 – June 2016, 198,500 notifications were received compared to 41,100 cases brought to ET in the same period. This fall was greater than the UK Government estimated and is one of the reasons why it is currently reviewing the fees and how it might reform the Help with Fees scheme to extend the scope of support available to people on lower incomes to ensure that lack of financial support is not discouraging them from bringing proceedings.

For many, this is significant evidence that the pursuance of weak or vexatious claims has been prevented; with Acas finding that 26 percent of those who did not settle or submit a claim found the fees off putting. However, it remains unclear whether fees have put off those who are not prepared to ‘put their money where their mouth is’ or if it is presenting a barrier to access to justice. One could be forgiven for believing that the success of ET claims that are pursued may be able to shed some light on this matter. However, the evidence remains largely inconclusive and falls prey to the influence of external variables.

The almost constant influx of case law on unauthorised deduction of wages and holiday pay claims has undoubtedly affected the data. In the two years following the introduction of fees, the overall number of claims made in Scotland increased by 159 percent, whilst dropping by 77 percent in England and Wales. Now, when you exclude unauthorised deduction of wages and holiday pay claims from these figures, the number of claims made in Scotland actually decreased by 11 percent in this period, largely due to the fact UNISON Scotland were pursuing these cases following the judgment of Lock v British Gas.

Interestingly, the same dataset found that the number of discrimination claims made in Scotland had decreased by 76 percent in Scotland and 68 percent in England and Wales. There is some statistical evidence to suggest that the introduction of fees, and in particular the two-tier fee structure, may be serving to further marginalise those with a protected characteristic and perhaps this is more prevalent north of the border. Citizens Advice conducted a survey in 2015 which indicated that 47 percent of respondents would have to put aside all of their discretionary income for 6 months to afford the £1,200 fees for a Type B claim. Discrimination claims fall within this category.

A focus on the experience of new and expectant mothers may be able to provide some explanation for this. The EHRC and Department for Business Innovation and Skills found in their 2016 survey that one in nine mothers reported that they were dismissed, made compulsorily redundant, or treated so poorly they had to leave their jobs. Perhaps crucially, only 5 percent of those surveyed indicated that they had been prevented from pursuing a claim due to the presence of fees whilst 46 percent stated that they were not aware that fees could be either reduced or removed entirely.

The ‘Help with Fees’ scheme was re-vamped in October 2015 and made available online in July 2016, in response to a widespread lack of awareness. It will certainly be interesting to see whether this has any effect on the number of cases pursued in the future. So what can we take away from this discussion, aside from the fact that nobody is really sure what impact the fees have had? Two lessons will be important for any employers. Firstly, that the impact of case law cannot be underestimated and re-examining human resource practice in light of decisions remains crucial. Secondly, that there are still some areas where employers are perhaps cutting corners and opening themselves up to claims, even when they are not being pursued. The consultation by the Ministry of Justice on the fees will come to an end in mid-March. An increased awareness of the ‘Help with Fees’ scheme could mean that more claims are made in the future and it is vital, therefore, that organisations remain vigilant and fair as well as engaging with early conciliation where possible.