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40 Years On – Why are there so many Employment Tribunal Claims…and what can social employers do to protect themselves?

Paul McMahon, Director McMahon Employment Law

History of Employment Tribunals

• Started life as “Industrial Tribunals” under s.12 of the Industrial Training Act 1964 to consider

appeals by employers against training levies imposed under that Act

• “When they were first established in 1964, the intention was that Industrial Tribunals would be a

cheap and accessible forum within which non-legally qualified individuals could present their cases, in a relatively informal setting”

• In 1998 changed their name to “Employment Tribunals”

History of Employment Tribunals

• “However, over the years, as employment legislation and case law has expanded and become

more complex, particularly with the proliferation of European employment law, the scope of the disputes that the tribunals are asked to consider has widened considerably. This has meant that typical tribunal proceedings now often involve the consideration of technical legal argument…this, in turn, has resulted in the tribunal being populated by solicitors and barristers, and the preparation for and conduct of hearings becoming substantially more labour intensive.”

• …and costly
• April 1987 - Mar 1988 = 30,543 claims made
• April 2017- Mar 2018 = 109,706 claims made

Most Recent Annual Employment Tribunal Statistics

• The MOJ has recently published its annual statistics which cover the 12-month period from the

beginning of April 2017 to the end of the March 2018

• For 2017/2018, a total of 109,706 claims were made
• The number of single claims up by 165% in the last reported quarter
• The number of single claims up by 27% in the most recent reported quarter
• Last reported quarter - single claim receipts were for the first time higher than the level reached in

July to September 2013

Employment Tribunal Claims Rising Fast

Impact of Employment Tribunal fees

• In July 2013, the government introduced fees for tribunal claims, leading to a dramatic fall in the

number of claims

• Claimants had to pay an issue fee to bring a claim, and a hearing fee before any final hearing. The

amount depended on the type of claim:

– Type A claims had an issue fee of £160 and hearing fee of £230 – Type B claims, (e.g. unfair dismissal, discrimination) had an issue fee of £250 and hearing fee of £950

• If a claimant considered they were unable to pay, they could apply for a waiver or reduction
• In July 2017 the Supreme Court ruled that the employment tribunal fee regime was unlawful

Impact of abolition of Employment Tribunal fees

• Following the introduction of fees by employment tribunals, the number of single cases received

per quarter was 68% lower

• As can be seen from the tables there has been a sharp increase in claims since tribunal fees

were abolished

• Acas has seen a 39% jump in the number of cases that have gone to an Employment Tribunal

since fees were abolished last year

• Commentators suggest we should expect to see further increases over the next few years

The stakes are higher….

• The stakes are higher - and getting higher still
• 1999 - maximum unfair dismissal compensatory award - £12,000
• 2019 - maximum unfair dismissal compensatory award - £86,444
• Maximum statutory redundancy payment/unfair dismissal basic award - £15,750
• In recent statistics the average award for a case involving sex discrimination was £85,622 (with the

top award for a sex discrimination case reaching £1,762,130)

The regulation of the workplace

• The more protection of employees there is, the more scope for employees

to enforce their rights there is too

• Just a few developments in the last 40 years or so…..

– equal pay – discrimination law – TUPE – Labour relations – The Employment Rights Act 1996 – family friendly rights – New statutory protections (e.g. working time, NMW, data protection)

Employment “rights” then…..

• Not unlawful to:
• Pay women less than men
• Discriminate on the grounds of gender, race, disability,

age…..

• No legal rights to:
• Maternity and paternity leave
• National minimum wage
• Working time protections (e.g. rest breaks, holidays)

Changing attitudes in society?

• Compensation culture in USA
• “..our records show that you have been involved in an accident that wasn’t your fault”
• “…have you been involved in an accident at work?”
• IT and Social media – “access to justice”, knowledge of rights?

Changing job market and workplaces?

• Jobs for life v “gig economy”
• Arguably hard/uncertain times mean aggrieved employees less likely to simply move on;

“mitigation”, “cost control”

• New thinking and developments in the utilisation and organisation of staffing
• Reduction in the influence of collective labour?

Conclusions/Solutions

• Ethos will help – “limit but not extinguish” the risk
• Don’t be blown off course/ defend your approach
• “Get a lawyer!”
• EVH Member Protect

EVH Member Protect

• “EVH Member Protect is a new service that provides EVH members

with legal advice and representation in relation to all employment tribunal claims – from the very first call from ACAS to tell you there is a possible claim, to the end of the final tribunal hearing.”

• Why, What and How

EVH Member Protect – Why?

• Increasing claims being faced, with increasing penalties
• Expensive legal fees for representation
• Insurances don’t cover what actually need
• ….High quality, low cost solution needed for members - that also

“fits” with the EVH way of doing things

EVH Member Protect – What?

• High quality legal advice and representation from local specialists,

McMahon Employment Law – no call centres!

• All advice and representation in defending employment tribunal

claims is covered

• All types of employment tribunal claims covered where reasonable

prospects of defending - no exceptions, no ‘small print’ exclusions

EVH Member Protect – What?

• All of the legal fees are covered – there are no excesses or other

hidden costs

• There is no need to ‘jump through hoops’ taking formal legal advice

before a claim is made

• Seamless link between EVH HR team input and the legal advice and

representation under the EVH Member Protect service for employment tribunal claims.

EVH Member Protect– How?

• Cost - best value. One moderate annual fee (from as little as £750 to £1,950 per year for

most members)

• In addition to all legal fees being covered for employment tribunal claims, an added

benefit of EVH Member Protect is a 25% discount off standard rates for any other specialist employment law advice and support members may require

• If you think your organisation could benefit:
• Free info sessions – sign up
• Free visit to present to board/senior officers
• Or simply call to discuss for more information

Contact:

Paul McMahon Director McMahon Employment Law Glasgow, UK Direct Line: +44(0) 141 447 0438 Mobile: +44(0) 7535 828051 Email: paul.mcmahon@mcmahonlaw.co.uk