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    A 56% rise in tribunal claims: time to worry?

    If the media have it right, the latest figures show that an unprecedented number of tribunal claims have been brought in the past twelve months.  But is this really true, or do we have another case of “lies, damn lies and statistics”?

    Any truth behind the headlines?

    The latest “Annual Statistics for the Tribunals Service 2009/10” have recently been published (see The next step).  According to the media they show it’s been a bumper year – tribunals accepted 56% more claims than in 2008/9.

    Facts and figures.  To put this into perspective, there were 151,028 accepted claims in 2008/9 and 236,100 in 2009/10 (which ended March 31).  This is certainly a huge increase, but is there an unreported truth behind the headlines?

    Distorted by multiple claims

    Yes!  This year the tribunal statistics are deeply distorted because of a sharp increase in “multiple claimant” cases.  For example, in the past year, we have seen the public sector equal pay claims and numerous “airline” strike cases.  But the trouble is that tribunals record individual claimants and not cases.  So if all the women from one council are locked in pay dispute, they will each clock up a separate claim; it’s not the other way around.

    Big part to play.  This type of claim increased by nearly 90% in 2009/10 and is the main reason for the leap in numbers.  However, individual claims did increase slightly during the last year.  So which areas were most affected?

    Leap in unfair dismissals

    The first “hotspot” was unfair dismissal claims (up from 52,700 to 57,400).  This was mainly due to redundancies during the recession; claimants alleging that an aspect of the process was flawed.  Also, some employers wrongly used the recession to dismiss poor performers.

    Note: These dismissals were often found to be unfair as the employees concerned were not told about their performance or given a chance to improve it first.

    Unlawful wage deductions

    Also, unlawful deductions from wages claims more than doubled (up from 33,800 to 75,500).  Many employers got caught out here as they failed to obtain the employee’s written consent prior to making a deduction.  Without one, there will be no defence; even where it’s made for a good reason, e.g. an employee has obviously been overpaid, but kept quiet about it.

    Tip 1.  A generic “catch-all” deductions from wages clause won’t work.  Instead, you must identify all the separate circumstances where you retain the right to make a deduction (see The next step).

    Tip 2.  The clause must also state that you will only deduct a sum that represents your actual loss, i.e. it can’t be an amount that attempts to penalise the employee in some way.

    Age discrimination

    Age discrimination cases also grew (rising from 3,800 to 5,200).  This is partly because more employees are asserting their rights under these laws.  However, from October 1 the Equality Act 2010 will come into force, so we may see a further rise in this area, but how tribunals will apply this legislation remains to be seen.

    The majority of the 56% increase is due to cases involving multiple claimants; as tribunals record these individually it distorts the figures.  So there’s nothing new for you to worry about for now, but take care with dismissals, deductions from wages and age discrimination, as these continue to be growth areas.

    “Tips & Advice: Personnel”: 16.9.10