Distorted reality and the muddle of multiple fees

Victoria Phillips is head of employment rights at Thompsons Solicitors

The significant increase in the number of employment tribunal claims in the first few months of this year, as revealed by the Tribunal Service’s quarterly statistics published last week, will no doubt provide the government with further justification for making it more difficult to bring claims.

 

Overall, the number of single ET claims was down by 10 per cent. But the headline figure, as we report in this week’s LELR, is that Working Time Directive claims doubled over the period. Of course they haven’t really. They are mainly large groups of existing claims and although the Tribunal Service does attempt to explain the warping influence they have – “the distribution for all ET cases is heavily influenced by the age of multiple cases (which can be stayed or await decisions from higher courts)” – it overlooks the fact that because of tribunal rules they have to be re-lodged quarterly.

 

This requirement creates the impression that the number of new claims are increasing significantly when in fact there is no increase. It is an issue that could easily have been addressed by the government in its employment tribunal reforms – we pointed it out in our original response, in 2011, to the BIS consultation Resolving Workplace Disputes consultation.

 

In fact  employment judges can, with the agreement of the parties, direct that such claims do not have to be continually re-submitted. This has been done this year in one of our large holiday pay cases.

 

But this was unusual. The fact is that tribunals don’t want to deal with these claims so won’t make it easier to run them. Having to fork out fees every three months is the strongest deterrent ever.

 

How the fees will be applied in practice to multiple claims remains a muddle. It’s not clear whether tribunals will require fees to be paid for every individual claimant in a potentially multiple claim each time they are issued (or re-issued), only to pay them back when the claim is decided by the tribunal to be a multiple. If that is the case, why levy the fee in the first place?

 

Whatever is decided – and if it isn’t decided before the 29 July implementation date there will be chaos – we are looking at fees running into eye-watering sums. And given the government’s position on refunds, provided in its response to the consultation, it’s unlikely there will be refunds for individuals who pay a fee even though the claim is confirmed as a multiple.

 

BIS reckons that the prospect of paying a fee rather than the prospect of getting a refund will provide an incentive to both parties to settle a claim. For hard working people denied their rights at work, unless they are in a trade union the only incentive that the prospect of paying a fee will provide is to put up with the treatment they receive, or to throw themselves at the mercy of the jobs market.

 

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