Since July 2017 when the Supreme Court abolished the requirement to pay a fee to issue a claim in the Employment Tribunal, there has been a steady increase in the number of claims issued in the Employment Tribunal, although the numbers are yet to reach the levels we saw before the fees regime was introduced.

The most recent figures published by the Ministry of Justice ("MOJ") for the period for October to December 2018 show that there were 9,811 single claims issued in the Employment Tribunal, which has increased by 23% when compared to the same period in 2017. Typically the most common employment tribunal claims are for unfair dismissal, unauthorised deduction of wages and equal pay. The MOJ statistics confirm that unauthorised deduction from wages remains one of the most common claims, although the most common complaint disposed of in Q4 2018 was unfair dismissal. Discrimination and whistleblowing claims also increased, although those claims were never as dramatically impacted by the fee regime. The most common discrimination claim remains age discrimination, followed by sex discrimination and then disability discrimination.

The rise in claims continues despite the introduction of pre-claim ACAS conciliation in May 2014. ACAS has released its latest statistics which show that only 24% of Early Conciliation cases that were closed in April to December 2018 proceeded to a Tribunal claim and, of those, 29% were settled by ACAS later or withdrawn. So although the number of claims is not back to the pre-fees level, the current numbers would no doubt be higher were it not for the introduction of ACAS early conciliation.

In response to the rise in numbers, the Government is currently recruiting more fee-paid judges and is due to introduce modernisation reforms to the Employment Tribunal over the next two years. This is welcome news as it is clear that an increase in resources is much needed. The MOJ figures reveal that the outstanding caseload for single claims has increased by 53%, and it is something we notice regularly when dealing with the Tribunals. We have been experiencing lengthy delays in the Employment Tribunal in processing both ET1s and ET3s, and recently had a main hearing cancelled on the day before, due to the unavailability of judges.

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