In 2017 the Supreme Court ruled that the government’s approach to fees in the employment tribunal was unlawful. Since then, it has been free for individuals to put forward an employment tribunal claim, but the government has recently begun a consultation regarding the reintroduction of these fees.
In the previous system, introduced in 2013, claims were categorised as either Type A or Type B. The Type A category dealt with simple claims and involved the Claimant paying fees totalling £390. The Type B category was reserved for more complicated claims and attracted fees of £1,200.
The Supreme Court ruled that the fee structure blocked access to justice. It also considered that the system was not proportionate or affordable. It was not financially feasible for many to bring a claim unless they had a high chance of winning. The Supreme Court also pointed out that the fees were so high in many cases the fees would exceed the award in the event that the Claimant was successful.
The original introduction of fees had resulted in tribunal claims dropping by over 60%. After the fees were scrapped claims went up by over a third.
The new proposal is that all Claimants would pay a flat fee of £55 to submit a claim. There will be some exemptions that will attract no fees and a system will be in place for Claimants who cannot afford them. A person who is single and has no dependants, has less than £4,250 in disposable income, and a monthly income of less than £1,420 would be entitled to a full remission of the fees. The government has stated that these proposals are based on the principles of affordability, proportionality and simplicity.
Unions such as Unison describe this as a revival of a failed policy which aims to put barriers in place for those seeking justice. There are others who are of the view that this time round the costs involved are modest and reasonable and unlikely to be struck down by the courts.
The government has denied the reason for the reintroduction of fees is in response to the backlog of cases that has been building up since the pandemic started. The latest figures show that the average wait for a case to be heard is a year. It has claimed that this will simply bring the employment tribunal in line with other courts where Claimants need to pay fees. At the same time there are many who feel that even modest fees will deter those who make spurious claims.
The consultation suggests that the government intends to implement fees towards the end of the year. However, this is an election year and the policy was very unpopular the first time round. If it does go through it is anticipated that the number of claims will reduce but perhaps not quite at the same rate as in 2013.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.