The Ministry of Justice (MoJ) is convinced that a fee system can be found which does not deny claimants access to justice, as indicated by a written answer in Hansard earlier this year which stated that it was reviewing how (as opposed to whether) it would reintroduce tribunal fees.
Fees for bringing a claim in the Employment Tribunal and Employment Appeal Tribunal were introduced in 2013, with claimants having to pay up to £1,200 for taking a claim of unfair dismissal or discrimination to a hearing, and up to £390 for pursuing lower value claims such as unlawful deductions from wages. The introduction saw claim levels drop by more than 70%.
Tribunal fees judicial review
UNISON challenged the legality of fees almost instantaneously by seeking a judicial review, arguing that they denied access to justice for unfairly treated workers and were therefore unlawful. The Union also claimed that they had a disproportionate impact on women.
In 2014 and despite appearing to accept these arguments, the High Court ruled that because fees had only just been introduced, their full impact could not yet be judged.
Later that year, however, the Court of Appeal (CA) granted the Union permission to appeal the decision on the basis that the issue was of “sufficient general importance to merit permission to appeal” and the CA went on to uphold the High Court’s decision that the fee regime did not breach the principle of effectiveness, was not indirectly discriminatory and did not involve a breach of the public sector equality duty.
Then in 2016, the Supreme Court (SC) granted permission for UNISON to further appeal against the CA decision and it was in July 2017 that the prevailing fee regime was finally ruled unlawful and that the fees involved should no longer be charged.
Tribunal claims up by 90%
Since then, the MoJ has reported a staggering increase of 90% in claims. As such, employers are currently more likely than ever to be faced with the prospect of appearing in the Employment Tribunal.
Chris Nagel, Director and Head of HR at EML, comments…
“The tribunal service was buckling under the volume of claims it was handling and employers had long been frustrated by the time and money they had to throw at an increasing number of frivolous and vexatious cases. As such, the introduction of fees and compulsory Early Conciliation were positively received by businesses. The effectiveness of these measures in reducing claim levels far exceeded expectations and many employers acknowledged (mainly off-the-record!) that the level of fees was proving prohibitive to individuals who might have legitimate claims. It’s no surprise to learn that the MoJ is deliberating the reintroduction of fees at a level that will sufficiently address this issue. Still, it will make it no less galling to UK taxpayers, who have had to foot the bill of refunding more than £27m to the thousands of people who were charged under the original fee regime.”
At Employee Management Ltd, our HR support consultants provide commercially minded employment law advice and bespoke HR services that can actively reduce your organisation’s exposure to litigation. We also offer a comprehensive employment tribunal representation service through which we can handle any claims you do receive. If you are an employer facing employment issues which could result in litigation, please feel free to contact us for a confidential, no-obligation discussion.