On the 26th July the Supreme Court ruled that the government’s employment tribunal fees are “illegal”, and prevent fair access to justice. That legislation will therefore, have to be repealed, and Government will have to reimburse all the fees that have previously been paid by claimants, which is likely to be around £30m. The obvious question that follows, will this now lead to an avalanche of fresh claims for small businesses?

Government statists make for interesting reading. One of the primary reasons for the introduction of fees in the first place was to deter false or bogus claims: statistics are currently only available for up to last year, and these show that the number of accepted employment tribunal claims in 2015/16 was 83,000. This is an increase compared with 2014/15 which saw 61,308 claims accepted, but is still well under the 191,451 claims accepted in 2012/13, the last complete year before the introduction of fees.

Employment tribunal fees were introduced from 29 July 2013, together with the ACAS early conciliation scheme which claimants must now go through before they can lodge a tribunal claim.  The implementation of the new rules resulted in almost a 57% reduction in the number of employment tribunal claims being brought, with the reduction being closer to 70% in the case of single claims brought by sole claimants. A claim may be brought under more than one jurisdiction, for example, where a claimant makes a claim for both unfair dismissal and sex discrimination, but it is counted only once for the purposes of the number of accepted claims. It is common for claims to include more than one jurisdiction and indeed the average jurisdictional complaints per claim is currently 2.1.

The statistics also show that in 2015/16:

  • 55% of all cases were withdrawn or settled before a tribunal hearing
  • 14% were struck out by the tribunal without a hearing
  • 14% were dismissed by the tribunal upon withdrawal
  • 4% were disposed of through a default judgment or dismissed at a preliminary hearing
  • 6% were rejected by the tribunal hearing
  • Only 6% were successful.

So if a claim actually makes it to a hearing, there is a 50:50 chance of success. Not bad odds for what is now a free punt!

In 2015/16

  • 84% of claimants had legal representation at tribunal, with a further 2% being represented by their trade union
  • the maximum unfair dismissal award was £470,865 and the average award was £13,851
  • the maximum race discrimination award was £43,735 and the average award was £14,185
  • the maximum sex discrimination award was a massive £1,762,130 and the average award was £85,622
  • the maximum disability discrimination award was £257,127 and the average award was £21,729
  • the maximum religious discrimination award was £45,490 and the average award was £19,647.