The Decline in Employment Tribunal Claims and the Introduction of Compulsory Conciliation

Tribunal Statistics 2013

The Ministry of Justice has published its quarterly Tribunal statistics from October to December 2013. The number of applications lodged (9,800 claims) has dropped by 79%, compared with the same period in 2012 (45,240 claims). This steep decline is thought to be a direct result of the introduction of fees for claimants in July 2013.

In February the High Court dismissed Unison's challenge to the introduction of fees in the Employment Tribunals and Employment Appeal Tribunal. This judicial review challenge failed in significant part due to lack of evidence of the impact of fees on access to justice. The Court made it clear that the Lord Chancellor would have to amend the fees regime if future statistics show that the principle of effectiveness under EU law is being infringed. These statistics will undoubtedly reignite challenges to fees and Unison are seeking leave to appeal.

ACAS Conciliation

Sections 7-9 of The Enterprise and Regulatory Reform Act 2013 will require claimants (from 6 April 2014) to contact ACAS for conciliation before instituting proceedings. From 6 May 2014 this will be mandatory. This is a free service.  This new requirement taken together with the obligation to pay a fee on the issue of Tribunal proceedings is likely to result in fewer claims being issued.   However, whilst there is a requirement to submit details with a view to conciliation, if the parties do not conciliate there is no sanction.

The parties will be offered pre-claim early conciliation via ACAS for a period of one month. If it is refused by either party, or is unsuccessful, the claimant will then be able to present their claim to the Tribunal. If the parties enter into early conciliation this will "stop the clock" on the limitation period to present the claim.

Independent research carried out for the period November 2010 to November 2011 found that, ACAS reached a settlement in eight out of ten cases and two-thirds of employers and trade unions questioned said that without the help of ACAS, the dispute would have taken longer to resolve, saving parties around five months. Figures published by ACAS in its annual report for the year ended 31 March 2011 showed that pre-claim conciliation was successful in 74% of cases. The use of pre-claim conciliation increased in the year to 31 March 2012 and was successful in 78% of those cases.