A nervous disposition
Times are changing. That is the resounding theme of the 2016 Senior President of Tribunals’ Annual Report. Sir Ernest Ryder, newly appointed Senior President, views the £700 million of Government funding promised for the reform of tribunals as an opportunity to improve the allocation of work, to modernise tribunal buildings and to develop outdated IT systems, bringing them into line with current practices. These changes should increase judicial efficiency and, as a result, facilitate greater access to justice. “Digital by default” is the direction provided by Sir Ernest, heralding the roll out of laptops, tablets and mobile phones to tribunals and members of the judiciary.
Following two failed judicial review applications brought by Unison to remove the requirement for Employment Tribunal (ET) fees (see our related blog, Tribunal fees question moves from court to politics), ET claims continue to drop considerably. In 2014/15, the ET received 61,308 claims, a considerable decline from the 105,803 claims it received in 2014/15. The Employment Appeal Tribunal (EAT) has witnessed similar results with a 55% decline in the number of appeals brought when compared to the number of appeals brought prior to the introduction of tribunal fees.
After mooting (and promptly dismissing) other potential causes for the reduction in ET and EAT applications, Sir Ernest places this reduction firmly at the feet of the recently introduced tribunal fees: ‘Fees are new; fees have an obvious potential to change the behaviour of litigants; and what appears to be a “cliff-face drop” in the number of applications became apparent so shortly after the introduction of fees as to suggest an actual temporal, and probably causal, connection.’
A crucial point highlighted in this report is that there has been no measurable statistical difference in the success rate of applications since the introduction of tribunal fees. This observation has the effect of rebutting one of the arguments most frequently voiced by those in favour of fees, that they have the effect of deterring weak or opportunistic claims. This should provide further artillery for Unison’s armoury should they succeed in obtaining permission to appeal the judicial review of tribunal fees to the Supreme Court.
Following the devolution of Scottish employment tribunals, we may soon be able to look northwards for a point of comparison regarding tribunal fees as First Minister Nicola Sturgeon has confirmed her intention to abolish tribunal fees as soon as she has the power to do so. This may result in “forum shopping”, with claimants seeking to bring claims in Scotland in an attempt to avoid tribunal fees.
Another point stressed by the report is the vast increase in litigants in person. Six years ago, 40% of claimants acted as litigants in person. Now, that figure has risen to 60%. In light of this, a Practice Statement was issued in June 2015 requiring Notices of Appeal and skeleton arguments to be shorter and more concise to prevent litigants in person from being placed at a disadvantage when faced with opponents who have arranged for professional representation. This is in accordance with Rule 2(a) of the Employment Tribunals Rules of Procedure 2013 which states that, in order for a case to be dealt with fairly and justly for the purposes of the overriding objective, the parties must be on an equal footing. Clearly, if counsel is presenting unnecessarily complex and loquacious arguments, the litigant in person will be at a distinct disadvantage. The Employment Lawyers Association is currently piloting a “duty lawyer” scheme at the London Central Employment Tribunal. The national roll out of such a scheme could potentially even the playing field and help achieve compliance with the overriding objective.
Change is fast approaching, a message emphasised earlier this year by the interim Briggs Report, and now reinforced by the Senior President of the Tribunals Annual Report 2016. With increased digitisation, the possible introduction of duty ET solicitors and other significant reforms just on the horizon, clients need to ensure that the law firms they instruct are prepared to adapt to these potential game changers in order to provide them with top quality legal services.
For further information, please visit our employment law pages.
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