The Ministry of Justice releases quarterly employment tribunal statistics which provide a useful insight into the types of claims that are being submitted, and pursued, by employees and ex-employees.
Analysis by the law firm, Fox & Partners, has revealed that the total number of disability discrimination claims brought in the employment tribunal was 6550 in 2018. Not only was this a 37% increase when compared to the previous year, but claims relating to disability discrimination were found to have risen more than eight times faster in comparison to the growth experienced by all tribunal claims — a 4% growth to total 178,990 in 2018.
While there may be some who believe that these statistics show that more disability discrimination is occurring in the workplace, it is likely that this significant increase is being contributed to by a number of factors, not least the removal of the employment tribunal fee regime in July 2017. We discuss a number of these factors below and how these might be contributing towards the rise in claims in this area.
As clarified in R (on the application of Unison) v Lord Chancellor  UKSC 51, the tribunal fee system restricted access to justice within the employment tribunal and was also indirectly discriminatory towards certain individuals, specifically women who were placed at a particular disadvantage. An issuing and hearing fee was payable by all claimants who wished to pursue a disability discrimination claim, which totalled £1200. Following the removal of tribunal fees, it is no surprise that employment tribunal claim figures have shot back up to similar levels that were experienced before fees were introduced. It is clear that the ability to lodge a claim without having to pay an issuing fee is likely to have contributed towards the increase in disability discrimination claims.
Other parts of the employment tribunal system which are, perhaps contributing towards the greater rise in disability discrimination claims include the ability to bring a discrimination claim without needing to meet a qualifying service requirement. There were suggestions that some employers adopted riskier practices during the fee regime when they were dismissing those who had under two years’ service because they could not claim unfair dismissal and would have to pay to bring another claim. Now, with fees no longer in place, an employee who feels they have been treated unfairly on grounds of their disability can bring a claim from day one. This can encompass a dismissal if they can argue the dismissal was less favourable treatment on the grounds of their disability or discrimination arising in consequence of their disability where the reason can be connected to their disability, such as absence levels or productivity.
The increase in the number of disability discrimination claims doesn’t necessarily mean that more disability claims are being heard in the employment tribunals. Claims may not go the distance — either because they are withdrawn by the claimant, for whatever reason, or maybe they are settled and resolved in a legally binding manner before the tribunal hearing occurs. For example, in the quarter October to December 2018, the Ministry of Justice statistics showed that 29% of claims dealt with during the three-month period were settled through Acas conciliated settlements, with only 8% disposed of by a successful hearing. Lodging a claim may lead to an earlier settlement which resolves the matter in a satisfactory manner for both parties, while avoiding the need for a formal tribunal hearing.
Understanding of enforcement action
As employment tribunal claims increase, so does the publicity around this area, as the media reports the inflated statistics and highlights the ongoing increase. Since employment tribunal judgments were publicly uploaded online from 2017, numerous online magazines and other news publications now report on interesting and notable employment law cases. Indeed, recent employment status cases have become headline news across the nation which contributes to greater numbers of employees, and ex-employees, reading about such matters.
A number of years ago, an employee who was mistreated may not have heard of an employment tribunal, Acas or Early Conciliation. Nowadays, even if they don’t have general knowledge of their opportunities to take enforcement action, this is easily searchable. Alternatively, colleagues, friends or family members may encourage a disgruntled employee who feels they have been treated detrimentally to challenge this action through formal enforcement.
Increasing disability awareness
The movement in recent years has been towards a greater understanding and awareness of employee health and wellbeing. While this is aimed at helping managers understand and appropriately manage their team during times of ill health, it will also contribute towards a greater employee understanding of their own health conditions.
Once such area is mooted to be mental health awareness, with figures from the NHS’s Long Term Plan showing that an estimated 35,000 more people who have been diagnosed with a severe mental health condition will be in employment by 2023/24. Millennials — those born in the 1980s and 1990s — who are now making up a large proportion of the workforce, are also believed to be more aware of mental health and wellbeing. As an increasing number of employees become more aware that they have mental ill health or a recognised mental health condition this, in turn, leads to greater awareness that they could be protected from unfair treatment under employment legislation.
Internal organisational awareness has also risen, however bad management of this issue can contribute towards claim numbers increasing. Although management discussions may be undertaken, using inappropriate or insensitive communication could lead to a disability harassment claim. Alternatively, failing to manage sickness absence or examine reasonable adjustments positively and proactively could result in a business facing action at the employment tribunal.
Are all complaints being actioned?
Although disability discrimination claims have increased sharply, this does not automatically mean that every incident of discriminatory treatment is being challenged through the employment tribunal system. It remains likely that there are still employees who feel they are unable to challenge their treatment because they fear retribution or the loss of their employment, although such detrimental treatment following the raising of an employment tribunal claim is unlawful victimisation.
There may also be others who simply do not wish to challenge behaviour in a public tribunal, whether this is because they do not want to detail their health effects in public, they don’t want to relive their treatment or because the delayed tribunal process means they are unlikely to resolve any matters for a significant period of time, therefore, they’d rather simply leave employment and move on.
It is clear that organisations need to use this analysis as a warning to proactively review their internal practices to ensure discrimination, of any kind, is not taking place. Encouraging the use of the internal grievance procedure when concerns are raised about disability discrimination will also help resolve the manner initially, and potentially avoid the matter escalating to an employment tribunal.
Seek further professional advice
Face2Face can provide on-site and in-person expert advice with clear, impartial and reassuring HR support to help you to avoid tribunal claims. Their areas of expertise include: disciplinary meetings, grievance meetings, HR investigations, appeals and much more. Call 0161 830 2510 for further information.