This was written by Nikki Duncan, Partner at Michelmores.
The TUC Report on ET fees is not the first to express concern that the, unexpectedly steep, decline in ET claims is presenting a real access to justice concern. There is some uncertainty about where the decline will level off, since a cumbersome fee remissions scheme means many claims are thought to be washing around in the system, pending final remissions appeals, & acceptance by the ETs. That said, it is plain that the number of claims have reduced significantly, with the TUC & others, expressing concerns that the much lower risk of ET claims could encourage less reputable employers to chance unacceptable employment practices.
ET fees however are only one of a series of measures the Government have introduced to reduce the number of ET claims. Other steps include raising the qualifying period for unfair dismissal protection from one to two years, & a cap on unfair dismissal compensation of one year's pay. "Protected conversations", designed to enable employers to shortcut lengthy internal disciplinary & performance & absence management processes, and agree exit packages, are also being more widely used. The new ACAS Early Conciliation regime, requiring potential claims to be referred to ACAS to explore the scope for pre-claim settlement, is also having an impact.
The Government have sought to offer a counter balance, in the shape a potential fine for employers, for flagrant breach of established good practice. However this only applies to compensation awarded against a less scrupulous employer, &, since most claims are settled sooner rather than later, there is little information as yet on the number, or quantum, of any such penalties.
Plainly little is likely to change in the run up to the General Election, and, whatever the political rhetoric, it remains to be seen whether a Labour Government would be sufficiently principled to repeal such a successful saving to the public purse.
In the meantime, disaffected employees may increasingly turn to other, cheaper, forums to air their grievances, such as "trip adviser"–type employment websites. However arguably the type of employers minded to take advantage of the reduced risk of claims, may also be the type to take a relaxed view of the potential damage to their employment reputation, so that whilst an internet posting or tweet may help the employee vent their spleen, that may not deter bad practices.
