The latest survey of Employment Tribunal applications has been released, providing Tribunal users with helpful insight into litigants, cases and settlements. This 12 from 12 article provides a handy run down of some of the takeaway points.
1: What is this survey?
The survey is carried out every five years, and this is the seventh survey conducted. Unlike the quarterly statistics, its results are based on surveys conducted of both employers and employees – so provides insight behind the pure numbers. It also covers issues that the statistics cannot – such as the outcomes of settlement negotiations, including settlement pre-issue.
2: What does it tell me?
Although only released on 9 July 2020, the survey was actually taken from cases disposed of between 3 October 2016 and 4 October 2017. As Tribunal fees were not abolished until 26 July 2017, some 96% of the cases surveyed had been under the fee regime. So the results are not exactly up-to-date and probably need to be taken with a fairly hefty pinch of salt.
3: Settlement pre-issue
There is still a fairly good chance that cases will never even get to the ET1 stage. In 75% of cases, a pre-action settlement was proposed by at least one of the parties, and in 78% of those cases, settlement was achieved. Claimants tend to settle cases pre-issue to avoid stress, whilst employers said that it was to save time and reduce costs.
4: Outcomes of claims.
In total, of all complaints raised, only 17% make it to a final hearing. 58% are settled (40% through ACAS and 18% privately). 13% are withdrawn by the Claimant, and 12% end up either dismissed or with default judgment for the Claimant. Of the cases decided at a hearing, in 59% of them the employer is successful.
5: How useful is ACAS?
Claimants still find ACAS a useful service, with nearly half of them saying that without ACAS involvement they thought it unlikely they would have settled their case. Taken with the fact that more than two thirds of settled cases go through ACAS, this may give pause for thought – will an offer of settlement be better received by a potential claimant if it comes through ACAS? In contrast, only 28% of employers considered ACAS useful in achieving settlement.
6: Money is king.
Unsurprisingly, money is the key to settlement – with 90% of settlements involving financial compensation. The median financial offer across all cases was just £5,000. Perhaps the view sometimes held by employers that settlement discussions are pointless because the employee wants too much money may not always be correct. Indeed, 20% of employers said they did not engage in Early Conciliation because they were not willing to pay anything. Perhaps if they knew the median settlement sums were comparatively low, they might be more willing to engage.
7: But so is getting your job back…
That said, money is not the only driver to prospective claimants. Whilst 61% of claimants said they were looking for compensation when they started their claim, one in four said that they were hoping to get their job back. Given the relatively rarity of reinstatement and re-engagement orders, this suggests a lot more could be done to manage the expectations of employees going into what is often a costly, long and stressful process.
8: How much does it cost to settle?
The median award reported was £5,000 – up from £3,000 at the last survey (2012). Whether those sums were paid, however, remains something of a mystery: employers reported paying the sum ordered in 93% of cases, whereas employees said this only happened in 72% of cases. It will be interesting to see whether, by the time of the next survey in 2021-2022, the penalty scheme will have reduced non-payment.
9: Is the Tribunal fair?
The good news is that all parties believe the Tribunal to be relatively fair. The bad news is that there is nevertheless a trust problem for claimants – with 43% of employees believing the Tribunal did not give both sides a fair hearing, and 32% believing employers were favoured. This contrasts with employers – only 15% felt that the Tribunal had not been fair.
10: The expectations gap.
There is a significant problem with expectations of success from both sides. In 92% of cases, claimants believed they had at least an even chance of success, and 87% of employers thought the same. Given that the actual outcomes are far more evenly split, this suggests that parties may not be giving enough consideration to the weakness as well as the strengths of their case – and perhaps some practitioners need to be more frank with their clients about prospects.
11: Challenges and appeals.
It seems that challenging a decision is very much a claimant practice, with 78% of all appeals and reconsiderations coming from employees. However, appeals are still relatively rare – only 13% of decisions were challenged. Unfortunately, the survey does not provide us with a flavour of the outcomes.
The worry some employees have of the stigma attached to bringing a claim is not borne out in the statistics. 80% of claimants said that they had found paid work since their claim had been issued. However, a worrying 27% of employees who brought discrimination claims remained out of work – although there is no data as to why that might be.
A full copy of the survey report can be found here.
This article was written by Tim Goodwin, a tenant of 12KBW.