The Employment Tribunal – a Forgotten Casualty of Brexit deadlock?

"The EU will not renegotiate the withdrawal agreement and there will be no withdrawal agreement without the backstop". That is Simon Coveney (deputy Irish prime minister) writing in the Sunday Times yesterday. Meanwhile, Theresa May insists she can broker an acceptable deaI. The one thing that is clear is that Parliament, the UK and the European Commission remain in deadlock.

Behind the Brexit impasse, the mechanics of state trundle on as best they can. This includes the tribunal system which is severely backlogged and struggling to cope with its caseload. This situation is unlikely to improve until Parliament reconsiders the fee regime for bringing claims. That, in turn, is unlikely to happen until we have some clarity over Brexit

Unison

The Supreme Court's 2017 decision in Unison decided that the fee regime introduced by the coalition government in July 2013 was unlawful under both domestic and EU law. Why?  Because of its effect on access to justice.

It was not the Supreme Court's view that any fee regime would be unlawful per se.  The Supreme Court appeared to contemplate a revised fee regime as its judgment gave some guidance to the Government on what they should consider if and when they choose to reintroduce a fee regime. One suggestion was to conduct equality impact assessments. Another was to model the effect of fee rates on different types of claim. The Government has since alluded to the reintroduction of Employment Tribunal fees in its Good Work Plan, its vision for labour rights in the future. Having said this, the Government sidestepped giving any detail.

Parliament - the tribunal fee regime - consequences

To introduce a new fee regime, Parliament needs to spend time considering its detail. The dominance of the Brexit debate means little to no progress has been made in this respect. This leaves the tribunal system in a difficult position.

The lack of financial disincentives for employees to bring claims in the Employment Tribunal has contributed to an increasing number of claims. Compared to immediately before the Unison decision, the number of new claims being issued has increased by over 300%.  Before the Supreme Court's decision, the tribunal system had contracted in response to what was then a reduced number of claims. Now, although the floodgates have reopened the administrative resources available to the tribunal system have not increased proportionately. Similarly, despite an active recruitment drive the interest from would-be judges has been limited. This has had real practical consequences.

An example of the chronic state of the current tribunal system is that hearings are being adjourned the day before it is scheduled to begin because there is no available judge. Getting a hearing date in the first place usually leaves parties waiting a long time for anything but the simplest of cases; the waiting time for a four day hearing currently stands at roughly 10 months.  Basic administrative tasks like circulating correspondence can be extremely slow, not sent to all parties or to any parties at all. This makes for a generally longer journey from start to finish in employment claims. With this come emotional, time and cost consequences that parties need to factor into their commercial considerations. Knowing this, there is a trend for employees to commence weak claims in an effort to achieve a settlement offer from a current, or, more usually, former employer.

Employers are in a tricky position when faced with frivolous claims. Although their defence may be strong, a successful employer will rarely recover their legal costs as parties would in the civil courts.  There are powers for a judge to place conditions on a claim progressing. These include making a "deposit order". This step involves the claimant being required to pay up to £1,000 into the Employment Tribunal for the claim to proceed. Although we are seeing an increased willingness for judges to issue these orders, they are still the exception and not the rule. Judges also have a general power to strike out claims with no reasonable prospect of success. Again, this is seldom used.

Brexit is taking its toll - predictions

For as long as Brexit remains an issue it will dominate the Parliamentary agenda. Unsurprisingly MPs have had their February half-term recess cancelled due to the amount of work left to be done. Putting Theresa May's posturing to one side, any compromise remains unlikely. A corollary being that an extension to Article 50 which will delay the date for the UK to leave the EU seems increasingly inevitable.

As for discussions of the Employment Tribunal fee regime, these will have to wait. With that delay, the Employment Tribunal's ability to contribute to its own funding requirements is hamstrung. Realistically, any expectation of enhanced funding from central government is hopeful to the point of naivety. Therefore, the position where claimants are able to exert financial pressures on employers without deterrent will continue. Parties to claims will continue to incur costs over a long period of time.  The financial, time and emotional costs of Employment Tribunal litigation continue to be substantial.

Until Parliament allocates sufficient time to have a meaningful debate regarding the fee regime in the Employment Tribunal this picture will not change.   That debate will be after the Brexit issue is resolved and who is to say when that will be.