Decline in Employment Tribunal claims – what does this mean for FE?

FE is not immune to Tribunal claims. Whether they come from disgruntled lecturers or churlish caretakers, Colleges get their fair share of Tribunal claims. So how will the new Tribunal regime that exists, in terms of paying fees and pre-claim conciliation work in practice?

The latest statistics from the Ministry of Justice make for interesting reading. They have confirmed the dramatic reduction in the number of Tribunal claims since the introduction of Tribunal fees in July 2013. Depending on which figures you look at, the reduction is stark. There has been around a 60% drop in the number of Tribunal claims lodged in the January to March 2014 period as compared to the previous year. It seems reasonable to conclude that the introduction of Tribunal fees has had an effect on the number of claims lodged. On the one hand, the introduction of fees has been seen as helpful to reduce the number of spurious or less meritorious claims. On the other hand, as UNISON has argued, fees are preventing individuals from exercising their legal rights in that the fees breach the principle of effectiveness (making it difficult for individuals to enforce their legal employment rights) and are seen as indirectly discriminatory (discrimination claims are more expensive to lodge with the Tribunal). UNISON has challenged the validity of the fees regime but it is unlikely that the case will be heard until the Autumn at the earliest. However, the publication of the statistics has given the union strong arguments to advance its position yet further.

The Government has pledged its determination to keep the fees regime under review. However, it is widely expected that even if UNISON succeeds in its legal arguments the matter will be appealed to the higher Courts for determination. Therefore, in the short term any proposed changes are likely to be in relation to the amount of fees payable; commentators widely expect the fees to be reduced if nothing else. However, time will tell.

In addition to the fees regime, pre-claim conciliation is now automatic. This means in practice that before a claim can proceed the parties must go through ACAS to see if an early resolution of the claim can be made. If it can be made, then all the better on the basis that a claim would not need to be lodged with the Tribunal at all. This would be in all parties’ interests so as to avoid litigation. However, it is still early days to determine how effective this process is. It is already clear that a number of Colleges are receiving calls from ACAS on pre-claim conciliation but whether this effects a reduction in Tribunal claims in the long term remains to be seen.

If conciliation cannot be achieved by ACAS, then ACAS will issue a certification confirming that resolution has been explored. A party cannot bring a claim until conciliation has been exhausted. The normal time limits for lodging Tribunal claims are stayed for a one month period whilst this process is ongoing. It seems reasonable to conclude that this issue of staying proceedings will become the subject matter of litigation in the coming months as to whether a Tribunal claim has been lodged in time given that current caselaw has shown that cases lodged minutes after the deadline have not been allowed to proceed.

So is FE any different from other public employers or the private sector? In a nutshell, it sort of is. Public sector employers generally face more litigious claims that private sector organisations and are subject to lengthy Tribunal hearings. Whether this is because more private sector employers settle claims as they have the money to do so whereas public sector employers do not remains to be seen. However, FE tends to attract complex Tribunal claims when they are brought; the introduction of fees and/or pre-claim conciliation is unlikely to effect a dramatic reduction in Tribunal claims in FE themselves.

Matt Kelly is a partner at Thomas Eggar, the law firm