Expected changes to the employment tribunal system

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The impact of tribunal fees' abolition on the system, claimants and respondents is becoming clear

The most recent set of figures published by the Ministry of Justice make for interesting reading. Between October and December 2017 the number of single claims lodged with tribunals has almost doubled since the outcome of the Unison case, in comparison with the same period in 2016. The number of employment tribunal cases with multiple claims has also increased significantly. As a whole, employment tribunals are now handling as many single claims as they were handling during the third quarter of 2013.

However, just to put this into perspective, the numbers are still running well below the number of claims that were being filed before the fees regime was brought in. There may be a number of factors that explain why the abolition has not simply restored the status quo. My view is that the Acas early conciliation regime is pretty effective in many cases at bringing about early resolution. So we have a radical increase in claims but we have not travelled back in time.

The tribunal system was slimmed back to provide an appropriate service level for the significantly reduced number of claims it was dealing with while the fees system was in operation. Most employment lawyers have anecdotal evidence indicating that the system is now showing signs of finding the additional case load hard to manage.

This has been added to by reports that there are five to six resignations per year from the ranks of the existing salaried tribunal judges. Equally, administrative resources have been reduced and this too is contributing to the strain being felt by the tribunal system. We understand that it is likely there will be a round of recruitment for salaried tribunal judges, potentially announced later on this year, to increase the numbers. Similarly, we understand that additional administrative resourcing is being provided.

However, all this comes at a time when the tribunal system itself is undergoing other changes. For example, the Briggs Review has considered the issue of a single employment and equalities court. It has recommended the creation of an online dispute resolution court for civil claims worth up to £25,000 and this may be extended into the employment arena. The Department for Business Energy and Industrial Strategy (BEIS) Review looks at digitising the tribunal process, and transferring the responsibility for creation of rules in relation to tribunal procedures from BEIS over to the Ministry of Justice. We also know that increasingly co-location of employment tribunals with other courts will be happening.

When these projected and likely changes are added to a system that is already under stress due to the increased volume of cases, it's clear we're going to see a period of significant change for employment tribunals as they continue to evolve to meet the demands of users.

Nicholas Robertson is head of the London employment group at Mayer Brown

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