25 February 2016

Annual Report from the Senior President of Tribunals

The Senior President of Tribunals has issued his annual report.

The report covers all the tribunals in Great Britain and the section on employment starts on page 90.  Of particular note are the comments made by the President of the Employment Appeals Tribunal (EAT), Mr Justice Langstaff, with regard to the drop in the number of appeals and the introduction of fees.

"The fact that the number of applications declined immediately after fees became payable does not, of course, inevitably lead to the conclusion that they have declined for that reason"... "however, it is difficult to think of any other cause of such a substantial change in the behaviour of litigants: other possible reasons for modified behaviour on the part of litigants, such as legislative change requiring longer service before bringing some claims, reducing the potential award available if some of those claims succeed, and requiring conciliation or at least formalised consideration of the possibility of it, are nothing new in the field of employment. Fees are new; fees have an obvious potential to change the behaviour of litigants; and what appears to be a "cliff-face drop" in the number of applications became apparent so shortly after the introduction of fees as to suggest an actual temporal, and probably causal, connection.
Whatever the cause, our statistics show that the rate of success for appellants whose applications were made in the 6 months before the introduction of fee-charging is so similar to the rate of success for those whose applications were made in the 6 months afterwards that there is no measurable statistical difference - and certainly none of statistical significance - between them.  Our conclusion at the EAT from these figures is that if the introduction of fees is indeed the cause of the reduction in the number of applications to appeal, to the extent now of just over 50%, then first, for every one successful appeal that is now brought there would have been two had fees not been introduced - "good" appeals are being deterred; and second, there is now some empirical evidence that fees have had no effect in deterring "bad" or "opportunistic" appeals, as had been suggested in some quarters."

The Ministry of Justice's review of ET fees is understood to have been completed now and Unison are reportedly seeking leave to appeal to the Supreme Court against the Court of Appeal decision to dismiss their application for a judicial review of ET fees.  Watch this space!

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