When in March of this year the Ministry of Justice published the quarterly statistics on the volume of Employment Tribunal cases received between October to December 2013 it showed a drop of 79% of claims issued in the Tribunal, compared with the same period the previous year. A fall so dramatic that the Government promptly hinted that the newly introduced Tribunal Fees, widely accepted as the reason for the fall, could be too high and that they would carry out a review.

More optimistic commentators said not to pay too much heed to the numbers of claims issued in the final quarter of 2013 because there would have been a significant hangover from the rush to issue before the introduction of the tribunal fees system. But with Claimants now required to pay up to £230 to issue a claim in the Tribunal and a further £950 when the claim is listed for a hearing, it seems clear that the fees are a significant burden for prospective claimants the majority of which will be recently unemployed.

Employment lawyers are commonly reporting that the number of new instructions remains significantly low. Even where new instructions are received, claimants will often give up if forced to issue a Tribunal claim because of the cost and it seems respondents are wise to this with many people saying that offers are not forthcoming until after the hearing fee is paid.

But maybe employment practitioners should look to civil litigators for a solution, for who high court fees and other disbursements and the risk of adverse costs are a way of life.

In many areas of civil litigation clients can be offered a no win no fee service because the liabilities incurred in making the claim, disbursements and adverse costs, are often protected by an after the event legal expense insurance policy (ATE).

We, at Box Legal, were quick to offer a product for employment tribunal claims once fees were introduced.

We can arrange an employment tribunal fee specific ‘Feesafe’ ATE policy which covers the tribunal fees, other incidental disbursements and up to £5,000 of adverse costs. More importantly we can also arrange funding for the tribunal fees so that claimants do not need find this money themselves.

As the tribunal fees are insured there is no risk the claimants will be out of pocket because either their claim succeeds and the fees are recovered from the other side or they are paid by the ATE policy if they lose.

Our premiums are competitive, fully deferred until the end of case and only payable if the case is won because otherwise the policy can be cancelled or a claim is made and the policy pays for itself. We therefore hope our policies do a bit to return employment claims to risk free litigation without any upfront costs, especially important in an area of law where claimants could be suffering financially.

With all of the difficulties claimant employment lawyers have faced over the past year it might come as a surprise, but there could be some good news on the horizon.

How to fund tribunal fees has been the big question on the minds of both claimants and their legal advisors and the answer could have been provided in a recent personal injury claim (Jeffrey Jones and Others v Sec of State for the Dept for Energy and Climate Change).

In this group action the Claimants succeeded in their claim for personal injuries and as well as claiming the usual costs and disbursements, they claimed interest incurred on disbursement funding offered by their solicitors. Each claimant had an agreement with their solicitor which gave them credit to spend on disbursements on the understanding that it would be recovered from the defendant if the case was successful or paid by an ATE policy if the case was lost.

The rate of interest at 4% was challenged on the basis that with their being little risk that the funding would not be repaid then a lower rate of interest which applies to business lending should be recoverable rather than a higher rate usually applied to individual borrowers.

However it was held that the claim for interest was actual rather than notional and the rate of 4% was approved as being reasonable.

After the event legal expense insurance is new to employment tribunal claims, but there is now a substantial risk of the claimant being out of pocket should their case fail so there is need for a policy.

Our Feesafe ATE insurance policies cover tribunal fees and other incidental disbursements. We also offer a loan for the hearing fee and the policy combined with a loan means that the claimant pays nothing and either the claim succeeds and the fees are recovered from the respondent or they are paid by the policy if the claim is unsuccessful.

We will need to see the full transcript before we can be sure the Jeffery Jones ruling will apply to disbursement funding for employment tribunal claims, but if it does then we seem to have an ATE product and hearing fee loan facility which can offer claimants cost free employment litigation once more.