Why 2018 will be a busy year for employment law
If employment law were writing a Christmas card to the other legal specialisms this year, this is what it would be likely to scribble quickly in the left hand side of the card: “Wow, what a year 2017 has been, tribunal fees scrapped and the gig economy taking a battering. Looking forward to being way busier in 2018!”
Before the introduction of employment tribunal fees in July 2013, employment law had been a growth area. Back in 1990 when I qualified as a solicitor, there were only two types of discrimination – sex and race – and the compensatory award for unfair dismissal was capped at £12,000. Employment law solicitors were often litigation or corporate solicitors who did a little bit of employment law on the side.
By the time Industrial Tribunals changed their name to Employment Tribunals in 1998, there was a lot more employment law going on. The Disability Discrimination Act had been passed in 1995 and that year, 1998, both the Working Time Regulations and the National Minimum Wage Act came into force, giving employees for the first time the legal right to paid holiday and to a minimum hourly wage.
In October 1999 the maximum compensatory award for unfair dismissal was increased substantially from £12,000 to £50,000. The greater financial risk of dismissing someone unfairly meant employers were keener to follow a fair process. Employment law, which had already been promoted out of a corner in another department to a specialism in its own right, became even bigger. Just as well, because more employment legislation was coming, often as a result of European directives, relating to such things as part-time work, fixed-term work, flexible work, religion and belief discrimination and age discrimination.
But then employment tribunal fees were introduced in July 2013. Whereas previously it had been free to issue an employment tribunal claim, most claims now cost £1,200 to get to final hearing. Claims plummeted, in some types of case by more than 70%.
Employment lawyers everywhere had less work to do and trainee solicitors were not as keen to choose employment law as their specialism, because it seemed a less secure career choice than other areas of law.
Fast forward four years to this July 2017 and Unison, which had commenced proceedings against the government immediately on introduction of the fees in 2013, were successful in the Supreme Court. Fees were declared unlawful and abolished. The number of cases was widely predicted to increase and this was confirmed last week when the first set of quarterly Employment Tribunal statistics since the abolition of fees were published. They show a 66% increase in single claims compared to the previous quarter. One of the biggest increases is in unpaid wages claims.
There are factors that are likely to mean that claims do not recover their pre July 2013 numbers, including the fact that all claimants must now go through early conciliation with ACAS prior to issuing proceedings and the minimum period of service required to bring an unfair dismissal claim increased from one year to two years in April 2012. Nevertheless, employment departments can certainly expect to get busier again over 2018.
Another growth area for employment law in 2018 will be the gig economy after the Employment Appeal tribunal determined that Uber drivers were workers, whereas the Central Arbitration Committee decided that Deliveroo drivers were self-employed.