Employment Tribunal Fees – Change on the horizon?

Friday 30 May 2014

The introduction of Employment Tribunal Fees

Fees were introduced into Employment Tribunal proceedings (which had previously been free for all parties) on 29 July 2013. Since that date:

• Claimants have to pay a fee to submit a claim, a further fee for the tribunal hearing and another fee if they want to appeal against the judgment

• Respondents have to pay fees for applications to set aside default judgements and applications for judicial mediation (amongst others).

The Unison application for judicial review

The primary aim of introducing of Employment Tribunal fees was to discourage vexatious claimants from bringing claims which had no merit and therefore wasting the Tribunal’s time and tax payers’ money (as well as the time and money of employers). However, this argument was not accepted by all interest groups and there was significant discontent about the introduction of fees.

In February 2014 Unison tried and failed to persuade the High Court to quash the new regime through an application for judicial review.

Unison put forward a number of arguments as to why the fees regime should be annulled. These included:

• The fees would prevent access to justice, which contradicts EU law;

• Woman would be indirectly discriminated against because they would be less able to make claims than men;

• Introducing fees for employment tribunals but not for First-Tier Tribunals breaches the principle of equivalence;

• Consideration had not been given as to the adverse effect the introduction of employment tribunal fees could have on people with protected characteristic being able to make claims.

One of the reasons given for Unison’s failure in this case was that the fees regime had only been recently implemented and as a result there was at that time no evidence to suggest that it was hindering access to justice.

The Tribunal Statistics

In March 2014, the Ministry for Justice released statistics showing that the number of claims issued between October and December 2013 had dropped by a mammoth 79% when compared with the same period in 2012.

Despite attempts by (among others) the Enterprise Minister, Matthew Hancock, to characterise this as being a victory for the new policy and a sign that vexatious litigants are now being deterred from issuing spurious claims, most commentators agree that the size of this decrease must mean that many individuals with genuine and reasonable complaints are being prevented from obtaining access to justice.

On the back of the release of these statistics, Unison announced (on 3 April 2014) that it would be challenging the decision of the High Court in the Court of Appeal. Unison will be asking the court to consider additional evidence of the Tribunal statistics.

Dave Prentis, the General Secretary of UNISON, said “There is absolutely no doubt that the Government’s decision to introduce fees has destroyed access to justice. The fall in the number of tribunal claims being lodged is staggering and these latest figures give the Government nowhere to hide.”

What future for fees in the Employment Tribunal?

Although it looks unlikely that the Employment Tribunal fee regime will be quashed completely, Jenny Willot MP (minister for employment relations and consumer affairs) has announced that there is to be a review of the new regime taking into account the Tribunal statistics. Ms Willott has indicated that one of the key issues for this review will be whether the level of employment tribunal fees is appropriate.

We consider it likely that the conclusion of this review will be that the fee regime remains in place but is altered to lower the level of fees payable by claimants. This reduction would aim to strike the balance whereby claims with little merit will continue to be deterred but access to justice is still available for those who have legitimate complaints against their employer.