Fees were introduced in the Employment Tribunal in July 2013. Since then there have been a number of unsuccessful legal challenges to their introduction. The Government is currently undertaking a review of the impact of the fees which they are aiming to publish at the end of the year.
Background
Prior to fees being introduced in July 2013 there was no charge for bringing a claim in the Employment Tribunal. Claimants are now required to pay an issue fee and a hearing fee to bring their claim (or appeal). The level of fee is dependent on the type of claim brought, an unfair dismissal claim, for example, costs £250 to issue and £950 for the hearing. There is a remission system for Claimants who cannot afford the fees. A claim which is issued without a fee (or remission application) will be rejected.
The Coalition Government’s original objectives for the fee regime were stated as follows:
- Financial: To transfer a proportion of the costs from the taxpayer to those who use the Tribunal service where they can afford to do so;
- Behavioural: To encourage parties to seek alternative ways of resolving their disputes; and
- Justice: To maintain access to justice.
Legal challenges and Government review
ET statistics show a significant decline in the number of claims issued in the ET since the fees were introduced. An example of this is a 79% drop in the number of claims received from October – December 2013 as compared to the same period in 2012.
Since their introduction there have been several Judicial Review applications requesting abolition of the fees, including two applications by Unison. Their applications have been based on ET statistics and included arguments that the fees have prevented individuals from exercising their rights under EU discrimination law, and have indirectly discriminated against women who bring more discrimination claims and have to pay the higher type fee to issue such claims.
The first Judicial Review application failed on the basis that it was brought too soon after the introduction of the fees (specifically 3 months) for the Court to assess their impact.
The second application (and subsequent appeal), issued after further statistics were published showing a further decline in the
number of claims received, failed as Unison did not provide specific examples of individuals who were denied access to the ET because of the fees. Instead they relied generally on the statistics which was not considered to be sufficient. In his High Court Judgment, Lord Justice Elias summed up that:
“The figures demonstrate incontrovertibly that the fees have had a marked effect on the willingness of workers to bring a claim but they do not prove that any of them are unable, as opposed to unwilling, to do so”.
The Courts did, however, acknowledge that the significant reduction in claims received merited a review.
The Conservative government announced their ‘Employment Tribunal Fees Post Implementation Review’ in June 2015 and they are due to report before the end of 2015.
Conclusion
In September 2015 the Scottish Government committed to abolishing fees when their devolution powers permit. However, it is hard to see how central Government could be persuaded to abolish fees in their review which would then affect England and Wales. This is because the original objectives set out above for establishing the fee regime and the focus of the legal challenges include reference to the restriction on access to justice the fees may have. The terms of reference in the Government’s review do not, however specifically include looking at examples of individuals who have been denied access to the ET because of fees, which was the crucial evidence the Courts required in the Judicial Review applications. Without this it will be hard to draw a conclusion that there has been a negative impact on access to justice.
The Government may be persuaded to alter the fee structure in some way; both the Law Society and the President and Regional Employment Judges of the Employment Tribunals have made recommendations to the review committee. They provide different recommendations on structuring the fees, but of interest is the Judges’ recommendation that respondents also pay response and hearing fees.
A majority of our employer clients have not surprisingly welcomed the fees and the resultant reduction in spurious claims. We will wait to see what the review concludes and update you when this information is available but we are not anticipating any wholesale changes, which would see the ET system becoming a fee free again.
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