Hot on the heels of one suspect statement regarding employment tribunal claim statistics comes another. Apparently unfair dismissal claims have “spiked” in advance of the forthcoming introduction of charging fees for submitting claims and the new rules that some hope will achieve the holy grail of dealing with all those so-called frivolous claims.
Above a picture of the brass plate outside the Employment Appeal Tribunal the headline on the Daily Telegraph was “Dismissal claims spike ahead of job law change”. The article went on to explain that “the latest figures” revealed a substantial increase in the number of claims, up by some 44%.
Other on-line articles from web-sites such as the Chartered Institute of Management and HR Magazine carried the same story: a nearly 50% rise in unfair dismissal claims, brought by employees looking “to rush through claims before new restrictions come into place, which will make it easier for employers to fire underperforming staff.”
It was even suggested that, employees fearing the chop were resigning early in order to bring unfair constructive dismissal claims, so that they could avoid the tribunal fee of £250.
The evidence for such assertions was provided by “Commercial law firm [or employment law firm, depending on which article you read] EMW.” We were told that it had made a Freedom of Information Act request for “the information”, which in reality was nothing more than the freely-available Tribunal Service statistics.
Commercial Law Firm EMW told us that during the period April to June 2012 10,600 unfair dismissal claims were submitted to the employment tribunals. During the following three months – July to September 2012 – 15,300 unfair dismissal claims were made. 10,600 to 15,300 is indeed a 44% increase, but it seems highly questionable to draw the conclusion – put forward by EMW – that “There will have been a spike in very lightweight claims for unfair dismissal”.
To begin with, no information was provided by the Government (or could have been) to explain the reason for the apparent spike in claims, Freedom of Information Act notwithstanding. All that was provided were the employment tribunal claims statistics, which include the number of unfair dismissal claims.
Secondly, why compare only the first and second quarters of 2012/13, when we have figures for the third quarter? Third quarter figures show that unfair dismissal claims lodged amounted to 12,249. That is a decrease on the preceding quarter, which is at odds with the suggestion of a “spike” in claims.
Thirdly, arriving at such a conclusion appears to take little or no account of the prevailing economic circumstances at the time (dipping in and out of recession) or other one-off factors, such as the end of the whole process of building for and hosting the Olympics.
Fourthly, at the time all these claims were being submitted, the proposals for charging fees and changing the rules were not finalised, let alone there being a date for their implementation. Whilst it is probably fanciful to suggest that disgruntled and about to be sacked employees were scanning the pages of the BIS web-site to check on the progress of the fees proposal (and Underhill’s proposed rules of procedure), it is more absurd to suggest they were clairvoyant.
Fifthly, on the basis of the extensive research that Commercial Law Firm EMW carried out – which I confess I have not seen – its says that only 1 of the 100 unfair dismissal claims it was involved in was actually likely to be affected by the proposed changes in relation to employment tribunal. This appears to run counter to the notion of people putting claims in now to avoid the fees. On the one hand such people are so aware of forthcoming changes they see with fees coming they should put a claim in, yet at the same time they can’t work out whether the fees will hit them personally or not.
Sixthly, all these claimants need to have been dismissed: whether and when to put a claim in has little choice around it. The dismissal is usually out of the employee’s hands and they only have 3 months in which to submit the claim.
In relation to those it is alleged have resigned early in order to beat the fees, leaving aside the fact that fees will not come in until later this year, is it really credible to suggest someone would give up their income and employment in order to have a few hundred pounds in tribunal fees? Probably not.
What this story illustrates (apart from the speed with which nonsense can be transmitted around the internet) is that different parties have different interests when it comes to tribunal claims. The Government has an interest in showing that claims are reducing, whereas others may wish to show the opposite, perhaps to scare employers into seeking advice to protect themselves from predatory claimants. What is important is that any claims of big swings in the number of claims (24% reduction or 50% increase) should be treated with the utmost caution, with all of us being slow to make a judgement on what they mean.