Employment Tribunal Update: Autumn/Winter 2019

September to December is the busiest time of the year for construction as clients and contractors alike try to get work completed ahead of the Christmas shutdown. Most subbies have their summer holidays behind them so focus on working as much as they can to maximise their earnings before bad weather and Christmas comes.

It also looks as if the final months of the year will be busy for employment tribunals up and down the country, with new records now being broken every quarter for the number of claims raised, and the time it takes to deal with them.

The latest government statistics show the number of claims lodged between April and June this year rose by 14% to 28,700 compared to the previous year, with only 9,000 being concluded.  On average, the time now taken between a claim being raised and concluded is 33 weeks for individual claims, and 140 weeks – more than two-and-a-half-years – when there are multiple claimants on the same claim.

The most common claim was ‘unlawful deduction from wages’ which is how holiday pay claims are termed. This is a favourite of the unions when encouraging self-employed contractors to stick the knife in when they move from a contractor and don’t think they will want to return.

And the number of cases are rising as it costs nothing to take a firm to tribunal, and costs are very rarely levied on the loser.  Or, as we so often hear at Hudson Contract:  “It’s free, so they might as well have a go!”

Amid fears the industry could contract next year, these nothing-to-lose claims will only continue to rise . . . when backs are against the wall with no money coming in, taking a chance on an employment tribunal looks like a decent option.

With the average claim costing around £5,000 to defend, £180 million is being dished out to employment lawyers every year.  And with only 9% of claims succeeding that works out at £55,555 for every claimant who has a genuine complaint – and that’s before you even begin to calculate the cost to the taxpayer of funding judges, staff and locations all bulging at the seams with these mostly-lost cases.

Hudson Contract’s recent caseload – we fight and pay for tribunal cases on behalf of our clients – includes a case we won where the client’s subsequent appeal was dismissed, another that was withdrawn and one that is ongoing.

The case we won, incidentally, involving a self-employed heating sales surveyor, was featured in The Times because the claimant was represented by the solicitor who had run the infamous Pimlico Plumbers case.  A happier outcome for Hudson Contract and our client than it was for Pimlico Plumbers

Especially since, in a bizarre twist, the claimant – despite losing – attempted to claim costs, submitting a letter to the tribunal stating the cost of going to tribunal was over £30,000.  On top of this, our legal team spotted in documents disclosed to the court that the claimant had ‘made errors’ on their tax returns and promised to correct them, which would apparently cost a further £30,000.

By way of a response, Hudson Contract has now submitted its own claim for costs against the claimant, on the basis that this failed case should have been closed down long ago.

“Win or lose tribunal hearings like this are costly and no fun whatsoever, even when you know your contracts are watertight and you are going to win.  But with Hudson Contract engaging around 35,000 people every week, it means they are inevitable”  says Hudson Contract Managing Director Ian Anfield.

“On the flip side, when our clients find themselves on the receiving end of a claim, they experience first-hand the service we provide in taking these cases on by absorbing the stress and the enormous amount of hassle and paperwork as well as footing the legal bills.  We have proved over and over again that the Hudson Contract Guarantee does exactly what it says.  We don’t simply manage our clients’ employment risks –we eliminate them altogether.”