Be careful what you wish for, as it might just happen…For a number of years employment lawyers, trade unions, employee groups and even some employer groups questioned the wisdom of employment tribunal fees, the level they were set at or both. Questions were raised about access to justice and redress, as well as whether the scheme was discriminatory, indirectly having an impact on women, for example.

In the face of this, the Government sought to maintain the line that the intention behind introducing fees was not to cut the number of claims by making it more difficult and expensive to bring them – something both the High Court and Court of Appeal felt was too early to judge – but to make the users of the system shoulder the costs of the system. The very obvious economic link – make something more expensive and generally people will consume less of it – was much in dispute.

The Supreme Court decision last year, ruling that the fee regime was unlawful, was a surprise in many quarters. We have now had a reasonable period of time in which to judge the effect of fees being abolished and some of the areas that, as a consequence, will need attention.

In March, the Tribunal Service released figures that showed a marked increase in employment tribunal claims being submitted in the period October to December 2017. So-called single claims (as opposed to multiple claims, which are more akin to ‘class actions’) were up by 90%. That sounds like a huge increase, but given that claims dropped by around 77% when fees were introduced, it puts us back to having somewhere between a half and two-thirds the number of claims we had pre-July 2013.

It is worth bearing in mind that fees were one of a number of measures introduced by the coalition Government to combat the claimed fear employers had of actually employing anyone. The qualifying period of employment necessary to claim the right not to be unfairly dismissed was increased from one to two years; compensation was capped to a year’s earnings; and early conciliation was introduced. Those measures will all have had a depressing effect on the number of claims being submitted and they remain a feature of the system.

Acas also reported its early conciliation figures and these showed an increase from some 1,700 notifications a week to around 2,200. That increase is likely to flow through to an increase in the number of claims submitted.

What is as interesting is how a system that slimmed down to try and cope with 40,000 claims a year now copes with an annual figure approaching 80,000. The answer is not that well. Many of us will have experience of how long it takes for new claims to be notified to a respondent – in some cases up to six or more weeks – as well as the hearing dates given, particularly for multi-day cases, in some regions stretching into 2019. On Tribunal Service figures, the number of outstanding claims, ie those not settled or withdrawn and waiting to be resolved by the tribunal, has increased by 66%.

What is clear is that the judicial, administrative and, in some cases, estate resources are not adequate. With a claimed easing of the public purse strings, further resources should be made available to make the system work.

Alex Lock, DAC Beachcroft LLP