I’ve spent years trying to convince employers that their chances of actually losing in a Tribunal are fairly slim, and that they should be more robust and ‘fight’ cases.
The position has become even more interesting given latest Tribunal statistics. Of 21,500 of cases that went to a full hearing in the last quarter, 6% were successful, meaning that the employer won in 94% of the cases.
Now, 26% of cases are issued and then withdrawn. That’s always been the case: employees issuing, waiting to see if they can get their employer to get their chequebook out then losing their appetite to fight the case when they don’t.
A further 27% of cases are settled via ACAS. That doesn’t mean a third of cases are those where the employer acknowledges they have done something wrong – it may be that their cases had weaknesses but equally they may settle purely because they can achieve a settlement far more cheaply than going through with a Tribunal hearing that may have been listed for a number of days.
That means that only 47% of cases, less than half actually proceed to a hearing. Employers who fear of ending up in an employment tribunal are probably less likely to do so than they realise.
Since the introduction of fees to issue proceedings in July 2013 there has of course been a marked reduction in the number of claims going through the system in any event – figures ranging from 62% to 84% depending on the type of claims being discussed.
What these new statistics show is that whilst the volume of cases is significantly reduced, the unmeritorious/weak claims have not been deterred by the fees. I could of have predicted that: those who wrongly believe they have a strong case, tend not to listen to ACAS or anything I might say when defending the employer – they don’t even believe the judges when we argue about these things in Tribunal, so £1200 isn’t going to put them off! Or they may well qualify for remission against the fees in which case there is no financial disincentive anyway.
Employers can take heart, the chances of ending up in a Tribunal are probably less than you think.