MoJ gears up for surge in employment tribunal cases

Barrister Daniel Barnett’s latest news wire asserts that the Ministry of Justice is looking to appoint 54 employment judges across England & Wales. 

The new appointments will be announced in January 2019, although they are unlikely to take up work immediately as there will need to be training and induction first.
DB goes on to comment that he has been told, informally, that the Ministry of Justice intends to launch a second recruitment round for fee-paid employment judges, once this recruitment round is complete.

https://www.judicialappointments.gov.uk/vacancies/122

Against a back ground of cuts elsewhere within the Justice system, the recruitment campaign for Employment judges clearly corroborates the increase in claims volumes that we have seen since employment tribunal fees were abolished. 

By way of a reminder, the number of single claims increased over the same quarter for the previous year by 64%  for Q3 and 90% for Q4 (according to HM Court & Tribunal Services statistics). The next statistical release for Q1 2018 is expected in June so watch this space for further comment.

Claims likely to rise following the abolition of employment tribunal fees

The abolition of Employment Tribunal Fees following UNISON’s successful Supreme Court appeal swept away a significant affordability barrier to individuals bringing claims against their employers or ex-employers.

There has been happy anticipation in the legal press that a surge of cases would emerge as access to justice was restored. Employment lawyers have fondly reminisced about a time before fees when individuals could more easily afford to bring claims. Commentators have speculated about the impact that the outcome of the UNISON case might have on the volume of future employment tribunal claims.  Will claims volumes increase to 2013 levels?

Rates have remained steady since ARAG entered the UK market in 2006 despite legal costs inflation. We should explain that over the last four years, any cost savings that it may have been assumed would have resulted from fewer employment tribunal applications have been tempered by:

·         a deflection of costs from tribunal representation to ACAS early conciliation. Early conciliation has been a significant factor in encouraging parties to settle disputes and reducing applications to tribunal. We cover legal costs to represent businesses throughout early conciliation. More than 92,000 complaints were notified for early conciliation in 2015/16 and in 48% of cases tribunal applications were avoided;

·         payment of employment tribunal fees either as part of an agreed settlement or as a consequence of losing a claim at tribunal; the Government’s undertaking to repay fees does not extend to employers (or their insurers) who were liable to pay them;

·         the effect of inflationary influences which have not been passed on to customers over time.    

Anecdotally, tribunals have reported an increase in the number of applications being received. We are hearing of long waits for hearings to be listed as applications back-up. The Employment Tribunals National User Group (England & Wales) noted, at its October 2017 meeting, that Regions were reporting a doubling in new claims since the UNISON decision. http://bit.ly/2D6RACE

Significant court closures, mergers and relocations and a shortage of employment tribunal judges, have contributed to the pressure felt by some tribunal centres. Additionally, the judgment in a particular case means that single claims may be brought where a multiple claim may have previously been brought; however the Government’s July to September 2017 tribunal statistics (published in December 2017) showed that single claim Employment Tribunal receipts are up by 64% over the previous quarter. http://bit.ly/2BoN01T This represents a sharp and immediate increase in risk for legal expenses insurers.

We are not going to mirror such an increase by raising premiums by the same extent (64%) or anything close to that; however, we will continue to monitor official tribunal statistics and our own claim volumes. Our Underwriting Team will carefully consider claims experience in light of previous employment claims and forecast the likely increase in claims to determine the future premium required.

Sometimes doing the “right” thing leads to unforeseen consequences

A couple of “issues” have passed my desk recently which leave me with a smarting sense of injustice.

Take Insurance Product Information Documents (IPID)…

My own opinion is that IPIDs are inferior to Key Facts documents in the UK because consumers will receive less information about their insurance product than they previously would have been given.

For example, where products are created by a managing general agent, there is no requirement to show the insurer. More generally, IPIDs do not include information about making a complaint and do not allow exclusions that apply to a particular insured event to be lined up against the description of that insured event. Additionally, there is no space to highlight extra services which complement “what is insured” – such as telephone helplines and in-line legal documents which significantly enhance the value of products for consumers.

We have taken a very flexible approach to product development and have delighted in designing unique features that respond to the needs of specific target customers and give niche cover. As a consequence of our willingness to go the extra mile, ARAG IPIDs will need to reflect the many modifications that we have made. Our innovation has been wide-spread and we have hundreds of “non-standard” wordings to consider. Had we adopted a more intransigent approach and not deviated from our standard product specifications, delivering to the exceptionally tight deadline would have been very much easier.

We also have many “embedded” policies where we have integrated ARAG products into primary insurance products. The “primary insurer” is deemed to be the product manufacturer under these circumstances. We will liaise on an individual basis to supply content for their IPID in relation to the ARAG cover that has been embedded.

We continue to hope that the FCA will agree to a transitional introductory period which will allow us to fully review all of our offerings and create suitable IPIDs for all of those special profile customers. In the meantime, we will be contacting our agents to supply suitable IPIDs very soon.

And what about employment tribunal fee refunds?

While the abolition of unfair employment tribunal fees is a splendidly good thing, it was very disappointing to read that where settlements have been reached between the parties in dispute -with fees being included within the settlement figure, the employer will be unable to apply for a rebate. The employee, who would have paid the fee the first place (but recovered it as part of their settlement), can apply for the refund and will stand to benefit from a “windfall”.  It seems that employers who have “done the right thing” by settling the dispute are being penalised, while those who may have proceeded to tribunal, lost and received an order to pay will be able to obtain a refund.

This seems very unfair as escalating disputes to tribunal is surely a last resort. It is in the best interests of parties to arrive at an amicable settlement.

So, doing the “right” thing sometimes causes detriment however, we will always put our customers first. We remain committed to building products that work well and to raising customer awareness of the benefits they can access when they buy legal expenses cover.   

Employment Tribunal fees will be scrapped

UNISON have won their Supreme Court challenge against the imposition of Employment Tribunal Fees. The Supreme Court website is about a week out of date and at the time of writing the full judgment is not listed however UNISON has issued a press release.

The introduction of fees, four years ago, is one factor that has contributed to rising claims costs for legal expenses insurers; however the potential costs savings to be realised following the scrapping of fees will be tempered by a potential increase in the volume of claims. UNISON’s victory will not be welcomed by businesses whose vulnerability to be claimed against will return.

We don’t yet know whether fees will be refunded automatically or whether, in the future, it will be possible to charge a lower fee.

UNISON makes a valid point when it says, “We’ll never know how many people missed out because they couldn’t afford the expense of fees. But at last this tax on justice has been lifted.”

ARAG policyholders will not be in the unknown pool of individuals who were deterred from pursing their employment dispute as their decision to take out Family Legal Solutions has given them protection against the unfair fees. Business policyholders who settle fees or are ordered to pay them have also been covered.     

ACAS’s 2016-17 report shows that around 1800 requests for early conciliation are received each week on average. Just below 50% of cases settle through ACAS early mediation and avoid being escalated to a hearing. ARAG policyholders have the reassurance of legal representation throughout early conciliation and beyond.

In relation to employment disputes, the fees have enabled the Government to save around one-third of the costs needed to run employment tribunals. Since introducing fees for employment claims other tribunal jurisdictions have introduced a fee system. For example, low fees of £100 for an application/ £200 for a hearing are payable for claimants seeking dispute resolution through the Property Chamber of the First Tier Tribunal. This level of fee seems much fairer and it’s possible the employment tribunals could adopt something similar.

Aside from charging fees in tribunals, did you know that last year HM Courts & Tribunal Services turned a profit of £100m through the imposition of “enhanced court fees”?  Enhanced court fees apply where court fees are set at a level that exceeds the state’s cost of running a case. This in effect turns courts into profit centres.  We deal with a number of landlord repossession claims and the last hike in fees increased court fees for landlords by 20%.  As tribunal fees have been judged to be unfair surely these enhanced fees are also unfair? 

ARAG’s vision is that all citizens should be able to afford to assert their legal rights and we exist to protect consumers, landlords and businesses against incurring heavy expenses to make or defend a claim. While the abolition of employment tribunal fees is welcome news for employees we will keep a close eye on the impact the decision might have on our business policyholders and we remain concerned at the high cost of bringing other types of claim. 

Unrepresented struggle with employment tribunals

I was surprised by the harsh line taken by the employment tribunal and employment appeal tribunal in a case summary prepared by James English of Hempson’s Solicitors and circulated by barrister Daniel Barnett in his excellent employment law bulletin.

The Claimant brought several claims, including constructive dismissal, against his former employer.

Perhaps he didn’t have legal expenses insurance because he initially contacted ACAS for Early Conciliation without any legal representation.  The claimant named a director of the business as the party he wished to make his claim against (the Respondent). It seems that in this case matters could not be resolved through ACAS Early Conciliation and the claimant instructed solicitors to prepare his Claim Form to pursue the matter at tribunal.

The solicitors correctly named the claimant’s ex-employer, 'SNA Transport Limited' as Respondent.  The employment tribunal rejected his claim as the Respondent had not been correctly identified on the Early Conciliation Certificate. His solicitors applied to the tribunal to reconsider that decision on the basis that the use of the director's name was a "minor error", which (under the rules) allows a tribunal to overlook it.

The employment tribunal rejected that application taking the view that confusing the director with the company was not a minor error, and it had been right to reject the claim. The Claimant appealed.

The Employment Appeal Tribunal, although sympathetic, rejected the Claimant's application. It said that a two stage test should be applied. Firstly, was it a minor error? If not, the claim would be rejected. Secondly, if it was, the tribunal should go on to consider whether or not it was in the interests of justice to allow the claim to proceed. Although in principle the distinction between a natural and a legal person could amount to a minor error, in this case it did not. Each case should be considered on its facts, and as there was no error in the tribunal's Judgment, the Claimant's appeal was dismissed.

I’m disappointed about this decision as it’s an easy mistake for someone who is acting without legal representation to make. The case does however underpin the value of legal expenses insurance for ACAS Early Conciliation.  Although the system was designed with the intention that employees should negotiate without legal assistance it is not free of obstacles. If this claimant had taken out LEI, the error in completing the ACAS form would have been avoided, allowing him to pursue his action at tribunal. Additionally, the insurance would have covered the Tribunal fees and legal costs incurred.