The return of Employment Tribunal fees?

04 December 2018

It has been reported that the government is considering reintroducing Employment Tribunal fees.

The Ministry of Justice had previously said in the summer that it was reviewing how fees might be reintroduced, and has now said it is confident that a fee system can be found which does not deny Claimants access to justice.

Background

Tribunal fees were introduced in July 2013 as part of the Enterprise and Regulatory Reform Bill at a rate of £250 to lodge an ET1 and an additional £950 to progress the claim to Tribunal.  Unsurprisingly, after a huge spike in claims just prior to July 2013, this led to a massive decrease in claims dropping from a monthly average of 17,000 to just 7,000. 

An initial judicial review brought by UNISON failed; however, they pledged to try again. In the meantime, the government also pledge to review the fee system and to publish its conclusions by the end of 2015.  They failed to do so; in the interim, the House of Commons Justice Committee published its own report in 2016 setting out that the government’s argument that the introduction of Early Conciliation via ACAS was responsible for the drop in ET claims rather than the implementation of the fee system was “superficial” and that the fees had had a significant impact on access to justice for meritorious cases.

Recommendations

The House of Commons Justice Committee recommended that:

  • the fees should be reduced
  • the remission system (whereby lower earners did not have to pay the fee) should be overhauled
  • special consideration should be given to cases concerning pregnancy / maternity discrimination:  the remission system took children into account but not where there was a child on the way; also it was more difficult for pregnant women to comply with the three-month time limit

The government, however, chose to reject these recommendations, stating in February 2017 that whilst fees had discouraged employees from bringing claims, there was no evidence that they had been prevented from doing so!

Removal of fees

In July 2017, therefore, the Supreme Court allowed the second UNISON judicial review, finding that Tribunal fees were unlawful, that they prevented access to justice, and that they were discriminatory against women.  With immediate effect, fees were no longer payable; the then Minister of State for Courts and Justice, Dominic Raab answered questions in parliament regarding Tribunal fees and his tone was reported to be apologetic.  Refunds were made to those who had already paid (with interest!) and there was seemingly no indication of a return of the fee system…………..until now. 

The future?

The removal of the fee system resulted in a huge increase in claims and employers feared a return to the pre-2013 situation where employees could bring claims without any merit in order to force their employer to settle rather than go through a time-consuming defence in Tribunal.  A revised fee system should bring a balance between giving genuinely wronged employees access to justice and discouraging non-meritorious claims.

We await further developments………….

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MHA MacIntyre Hudson HR Solutions provides bespoke outsourced HR solutions to meet the specific requirements of our clients. We are very experienced in dealing with all types of HR matters and can provide fully comprehensive generalist HR support. We are fully abreast of all the latest employment law developments and can advise on all aspects of employment legislation.

If you have any further questions regarding this matter, please send us an online enquiry or contact Stephanie Pote, HR Consultant.