The Employment Tribunal and EAT statistics published for last year show that 382,400 tribunal claims were made in the year ending March 2011. Of these 29% were resolved through an ACAS settlement and the tribunal gave a final order in favour of the claimants in respect of 18% of all claims made – either following a full hearing or because the employer did not defend the claim.
Of the 49300 claims that reached a full hearing last year 57% were successful. So although making a claim against your employer can be a daunting prospect, and employers and their representatives may try to make this difficult for you, this shouldn’t dissuade you from bringing a legitimate complaint- whether it be for unfair dismissal, discrimination or some other claim. There are risks and costs involved in all litigation which is why many claims are settled before a Tribunal hearing is reached, and again this is borne out by the statistics.
However what the statistics don’t show is how many settlements and Tribunal awards are actually paid by the employer. It is hard enough to bring and win an unfair dismissal claim, but often winning the claim is the easy part. Some unscrupulous former employers go into liquidation, or start trading under a different name to try to avoid payment of tribunal judgments.
If an employer is insolvent, the Government may pay a small part of the judgment through the Insolvency Service, but the vast majority of any award is likely to be unenforceable.
Ministry of Justice research in 2009 found that 39% of recent tribunal awards had not been paid at all and a further 8% had only been paid in part. As a result of this research a so called fast track enforcement scheme was introduced in April 2010 to allow successful claimants to enforce Tribunal awards and settlements through the High Court Enforcement Office.
The idea of the scheme was to simplify and speed up the enforcement process. Judgments no longer have to be registered with the County Court and if you have an unsatisfied judgment or settlement you just need to complete a simple application form and pay a court fee of £60 to start off the process. If the enforcement is completely successful you will be paid back the court fee together with the full tribunal award and interest. On behalf of our clients we needed to make use of this scheme on several occasions last year- with mixed results.
Sometimes the Sheriff manages to obtain immediate payment in full. In other cases the employer will agree a payment plan to pay the debt in instalments.
The High Court Enforcement Office that we use has also reported delays in paperwork mean that the scheme is not as fast as originally envisaged, giving rogue employers plenty of time to find ways to evade payment.
The Ministry of Justice advised that in the first year since it was introduced successful claimants have tried to enforce 1495 unpaid Employment Tribunal awards using the fast track enforcement scheme, resulting in 42.5% of these awards being fully recovered. This percentage may improve but so far the results are worse than the results of the research in 2009 when it was found that 53% of judgments had been fully paid. They did not state in how many cases no recovery has been made at all.
So although using a High Court Enforcement Officer is likely to be the best method to try to enforce an unpaid settlement or judgment, in our experience and on the Ministry of Justice’s own figures, there is still a long way to go before there is a completely effective enforcement process.