The introduction of a £1,600 fee to bring a case to the Employment Appeal Tribunal (EAT) has deterred many ‘good’ appeals while having no effect on those that are ‘bad’ or ‘opportunistic’, the former president of the EAT has claimed.
Mr Justice Langstaff – whose term ended last year – said that while the EAT’s caseload had continued to fall and, in England and Wales in 2015, was 45% of the level in the year before fees were introduced, the success rate of appeals had not changed at all.
Appellants to the EAT have to pay a £400 issue fee and £1,200 hearing fee.
Writing in the Senior President of Tribunal’s annual report, published yesterday, Langstaff J said: “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 number of claims brought in employment tribunals has fallen even more dramatically than in the EAT, and the judge said that while the fall coming after the introduction of fees did not necessarily mean the two were linked, it was “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.”
Langstaff J also revealed that a review of fees charged in employment cases carried out by Ministry of Justice civil servant Bill Dowse – whose terms of reference included understanding the cause or causes for the drop in claims – has been concluded and a report has been submitted to ministers.
Mrs Justice Simler took over as president of the EAT on 1 January 2016.