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Thursday, 17 April 2014 13:33

Catastrophe in more detail

Written by  David Renton
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Most of my readers will have picked up, either from the various legal update services who have already covered this story or from the reports in the press, that the latest Tribunal figures, released yesterday, show that ET claims have fallen sharply, following the introduction of fees in July 2013.

I thought it would be useful to look beneath the headline figures, which have typically been reported as a fall of 63% (individual claims) or 79% (total claims), to show which jurisdictions are hanging together, and which ones aren't.

The following table shows in the left hand column, the decline in the number of cases brought in December 2013 and December 2012; in the middle column, the number of cases brought in that jurisdiction in December 2012 (i.e. their numbers in a typical month, pre-fees); and in the right hand column, the jurisdiction:

-90% 1,606 Redundancy failure to inform & consult

-86% 776 Written statement of terms & conditions

-83% 1,760 Sex Discrimination

-82% 989 Redundancy pay

-80% 1,825 Equal pay

-77% 2,708 Breach of contract

-74% 638 Disability discrimination

-72% 4,425 Unfair dismissal

-71% 100 Written pay statement

-70% 3,108 Unauthorised deduction from wages (formerly wages act)

-67% 68 Written statement of reasons for dismissal

-66% 64 Discrimination on the grounds of sexual orientation

-66% 2,708 Working time directive

-61% 214 Age Discrimination

-60% 381 Race Discrimination

-59% 65 Discrimination on the grounds of religion or belief

-53% 104 Transfer of an undertaking failure to inform & consult

-48% 31 National minimum wage

-41% 108 Suffer a detriment/unfair dismissal pregnancy

-38% 54 Part time workers regulations

The first thing to note is that the fall has been sharpest in the jurisdiction which involve the most claims: if you were a lawyer thinking "I can reinvent myself as a specialist in part-time workers' claims", clearly that won't work they may be holding up better than the average but there are too few of them to make a difference

Next, if you separate out the jurisdictions which indicate group claims (i.e. single cases involving perhaps hundreds or thousands of joined litigants, which take up a tiny proportion of the system's net time but have distorted the Tribunal figures over the past few years) they have declined very sharply in numbers, giving the impression that the working time claims in aviation and the equal pay / sex discrimination claims in local government and housing have in essence become historic all or almost all were issued prior to fees coming in, last July, and they won't appear in future years. This alone will reduce the statistical number of claims dramatically, even if it won't make much difference at all to 99% of Judges, lawyers, Claimants or Respondents.

I had expected wages and similar claims to fall fastest, as fees have been set so high that the Tribunal regime is punitively unattractive (who would spend 390 chasing a debt of less than 500, especially when even if the Claimant succeeds, Claimant's recovery rates are below 50%). This has happened to some extent witness the cluster of redundancy claims and breach of contract near the top of the pile.

I had hoped though that unfair dismissal would decline less sharply maybe by around 60% post-fees: it is the bread and butter of the Tribunal system, and has some the same problem as wages (who would spent 1300 chasing a likely award, if successful, and if compensation is ordered, of a median 4500 or so?) but to a lesser extent.

The real surprise is discrimination. At a decline of "just" 61% and 60%, age race discrimination cases (the only numerically significant groups of claims to be holding up at all) show what one Employment Judge told me recently, "all our one five day cases are still in the diary, it's the one day cases which have vanished".

But look at sex and disability discrimination with their much sharper falls of 84% and 74% these are even worse, and much worse, than even I had feared, and I have been among the greatest pessimists.

If you take two steps back and look at the picture as a whole, what you see is Claimants, in all jurisdictions, with winnable cases (remember: 3/5 of all Tribunal claims succeed), voting with their feet, and concluding that fees have taken the Tribunal decisively out of the reach and that there is no justice for them.

And this is before we get compulsory Acas conciliation in April 2014: which will almost certainly result in a further chunk of 60-70% or so of all cases coming out of the Tribunal system.

If workers were getting anything in return it might not be so bad but they are not this is a significant defeat for everyone at work. And the only hope will be if workers find alternative ways of obtaining justice, by putting pressure, directly, on their employers.

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Last modified on Thursday, 01 May 2014 09:17
David Renton

David Renton

Garden Court Chambers 

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