The current landscape in the Employment Tribunal Scottish Employment Rights Network

Fee levels in the ET Type A (e.g. unpaid wages, redundancy pay, pay in lieu)– level 1 fees = issue fee of £160 and hearing fee of £230 Type B (e.g. discrimination and unfair dismissal) – level 2 fees = issue fee of £250 and hearing fee of £950 Fees for mediation (£600), reconsideration (£100 or £350), set aside of DJ (£100), Er’s contract claim (£160)

Reimbursement of fees EJ “may” make an order requiring the loser to reimburse to the winner fees the winner has paid out. Start on the premise that fees will be reimbursed from loser to the winner unless there are reasons why that should not happen. What if 100% contribution? Remember to ask in ET 1/at hearing

System improvements Online portal has had various problems but work underway to provide save and return functionality, to improve the online fees calculator, improvement to site look and usability – hopefully delivered by the end of the calendar year.

Remission process improvements On 30 June a number of changes were introduced including: Completely revamped application form and streamlined, more user friendly guidance Ability to send copies of documents rather than originals being required Thresholds for disposable capital rather than exact figure required Extension of “date period” for documents from 1 month to 3 months (e.g. DWP letter)

What has happened since fees? Before fees would expect about 30 claims per day in ET in Scotland. In week before fees introduced had +800 That means unwise to take August and September 2013 figures into account (due to spike impact) when considering the trends.

Number of claims since fees m/uploads/attachment_data/file/319100/tribun al-stats-annex-c.XLS m/uploads/attachment_data/file/319100/tribun al-stats-annex-c.XLS ET (GB) total claims accepted Jan-March 2013 = 63,715, Jan-March 2014 = 10,967 Scottish single claims – Oct 2012/March 2013 = 2174 Oct 2013/March 2014 = 1021 (down 53%)

Number of claims since fees Scottish multiple figures – Oct 2012/March 2013 = 2821 Oct 2013/March 2014 = 825 (down approx 69%) but note in May 2014 we had 895 multiple claims received, in June we had 231 and in July we had 2499 claims in one main multiple (figures from May on are “raw”).

By jurisdiction Scotland only BOC claims Jan-March 2013= 561 BOC claims Jan-March 2014 = 268 Unauthorised wage deduction Jan-March 2013 = 658, Jan-March 2014= 205 Unfair dismissal Jan-March 2013= 739 Jan-March 2014 = 405 Sex discrim Jan-March 2013 = 227, Jan - March 2014 = 35

Jurisdiction Scotland only Race discrim – Jan-March 2013= 32, Jan-March 2014 = 16 Disability discrim – Jan-March 2013 = 129, Jan-March 2014 = 68 Redundancy, failure to inform or consult – Jan-March 2013 = 98, Jan-March 2014 = 18 Redundancy Pay – Jan-March 2013 – 138, Jan-March 2014 = 79

Claims affected “Fast track” (claims for wages etc) Impact on the “night court” Move of work to the Sheriff Court in breach of contract claims But also significant drop in UD and discrimination where there is no concurrent jurisdiction.

Possible impact on resolution of cases Are some employers not willing to engage in settlement discussions until after hearing fee paid? Are some employees more minded to go to hearing once they have paid the hearing fee? Are cases harder to settle because fees being built in to sum sought? Are some employers more willing to breach the law on basis unlikely to be challenged at all?

Enforcement of ET awards 49% if successful claimants receive their award in full, 16% receive it in part 35% of successful claimants receive no part of the award 53% receive full or part payment without using enforcement 26% of unpaid claimants used Sheriff Officer cf. 46% in England and Wales

Impact of enforcement problems Would you pay the fees knowing there was only a 50% chance you would receive any award made by the tribunal? Would an employer who won’t or can’t pay the award reimburse fees even if ordered to do so? Will new provisions in Small Business, Enterprise and Employment Bill cl. 136 (inserting into ETA 1996) make a difference?

Financial penalties for non payment Penalty can be imposed on respondent in respect of any ET award (or Acas settlement sum) plus interest which is outstanding on day due to be paid (including any sum reimbursing fees but not including any award of expenses/prep time). Sum not outstanding if appeal still possible or appeal made but not determined.

Financial penalties Enforcement officer must issue warning to the employer that penalty will be imposed unless employer pays the amount outstanding by a specified date. Penalty is 50% of unpaid amount subject to minimum of £100 and maximum of £ % reduction if penalty paid within 14 days of notice. Penalty to S of S

Financial penalties Appeal against a penalty possible to a sheriff. Where an appeal has been made the amount payable under the penalty notice is not enforceable until the appeal is determined or withdrawn.

Postponements The 2014 Bill also contains powers allowing the S of S to amend the ET Regs to include provisions limiting the number of postponements a party can have in a case and to require the ET to consider awarding expenses/prep time against a party where they have been successful in obtaining a “late” postponement. (Postponement includes adjournment.) “Late” will be defined in the ET regulations.

What does the future hold for the system? Law Society of Scotland paper “Scotland’s Constitutional Future 2” raising issues to be considered in the event of independence including “In the event of independence thought would need to be given to whether to move the Employment Tribunal into the Civil Court system as a specialist Employment and Equality Tribunal”.

Should we be careful what we wish for or would it be a new dawn? Donovan Commission (The Royal Commission on Trade Unions and Employers’ Associations ) Recommended a specialist forum to deal with “all disputes between the individual worker and his employer”. Civil Court viewed as “apt to lead to waste, frustration and delay”.