A Word from the Editor - April 2019

Alex Lock, DAC Beachcroft LLP
Monday, April 1, 2019

The Brexit train continues to rumble along its track, destination unknown, resembling one of those cartoons where the character sits at the front of the engine, desperately laying the track in front of the train as it moves along, hoping to ensure it does not crash, but not knowing where it will end up or whether the supply of track will be exhausted before it gets there. As I write this, we are 10 days from our destination, but whether there will be a platform there or we will break down on route or be diverted is not known.

This is problematic for a very long list of reasons, but up there towards the top is the huge distraction it creates, diverting energy, thought and resources away from those areas that need all three. The latest employment tribunal statistics were published last month and they add further to the need for there to be energy, thought and resources dedicated to a system that is in difficulties.

One of the headline figures is that ‘single claims’ – defined as being claims made by a sole employee against their employer for a breach of their employment rights – have risen over the past 12 months by 23% in the quarter October to December 2018, when compared to the same period in 2017. Nearly 10,000 claims were received in that quarter, compared to around 8,000 the previous year. This will mean that, on an annual basis, single claim receipts are running at approximately 40,000 per year now, compared to around 18,000 per year prior to fees being abolished.

If one looks to see which type of claims are up, the short answer is all. Some areas, however, are up significantly more than others. ‘Money claims’ (unlawful deduction from wages, working time/holiday, redundancy pay etc), which were so hard hit by the introduction of fees, are up by more than the average. Discrimination claims have all risen significantly. Disability discrimination claims by far and away the most: pre-fees they were running at around 900-plus per quarter, now by more than 1,500. Perhaps this is evidence of what is described as a growing mental health crisis.

It will be sometime before we can work out what this means, beyond the argument that if one makes something free that was previously charged for, people will consume more of it. If we see an increase in claims being struck out; the number of claims being determined against claimants rising; and an increase in costs awards against them, this will support an argument that more unmeritorious claims are being presented with the suggestion of people trying it on.

If the figures over time do not show those outcomes then it is more likely that there was real force to the access to justice argument made against fees, namely that employment rights are being breached and there needs to be a proper mechanism for employers to be brought to book.

It will, however, be some time before that can be assessed. Part of the reason is the amount of time it takes for cases to be determined. The outstanding caseload for single claims has increased by over 50% and mean age at disposal was 30 weeks, an increase of four weeks over the previous year.

The recruitment exercise for salaried judges last year will help matters, as will the forthcoming exercise for fee-paid judges. It is important, however, that further reforms to make the system better (not necessarily cheaper) are also not forgotten. Many proposals were made 12 or more months ago that warrant serious consideration.

Alex Lock, DAC Beachcroft LLP

The legal content in this article is believed to be correct and true on this date.