Fees were introduced for employment tribunal and EAT proceedings in July 2013. Since then there has been a dramatic drop in the number of employment tribunal claims: the 78% drop between June 2013 and September 2014 being the most significant.

This led to the government commissioning a review in 2015 to assess whether the introduction of tribunal fees had been successful in meeting three objectives: to transfer a proportion of the costs of the tribunal service to users; to encourage people to use alternative services to help resolve their disputes; and to promote access to justice.

The outcome of the review was published yesterday.

Review of the introduction of fees in the Employment Tribunals: the findings

The Ministry of Justice has concluded that the original objectives have been broadly met.

  • Financial: those who use the tribunals service are contributing around £9 million per year in fees.
  • Behavioural: although there has been a 'sharp, significant and sustained fall in ET claims following the introduction of fees', particularly on workplace discrimination claims, there has been a significant increase in the numbers using the ACAS early conciliation service (launched in April 2014).
  • Access to justice: conciliation is helping 48% of the people who refer disputes to ACAS avoid the need to raise a claim; where conciliation doesn't work 34% go on to raise proceedings.

While there is clear evidence that employment tribunal fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so

Review of the introduction of fees in the Employment Tribunals: the proposals

Fee remissions

The government accepts that there is a group (estimated by ACAS at between 3,000 and 8,000) who could not resolve a dispute because they said that they could not afford to pay. To address this, the government proposes to raise awareness of the fee remission scheme and make it simpler to apply.

  • Access to the support available under the Help with Fees scheme is to be extended by raising the income level at which claimants can receive fee remission to, broadly, the same level as someone earning the national living wage and working 40 hours a week. This would result in the gross monthly income threshold rising from£1,085 to £1,250.
  • Corresponding increases would also apply to couples and those with children.
  • There is no proposal to raise the threshold annually in line with increases to the national living wage.
  • The review highlights the steps already taken to date to simplify the Help with Fees scheme with clearer guidance and the introduction of the facility to apply online.

Fee exemptions

From 31 January 2017, a fee will not be charged for proceedings for recovery from the National Insurance Fund, for example claims for redundancy payments where an employer is insolvent.

Fee structure

The government did not agree with the Justice Committee's recommendations that the level of tribunal fees should be substantially reduced and that the Type A/B distinction should be replaced (with either a single fee regime; a three-tier regime or by fees based on the value of the claim).

UNISON challenge

The government's view on how the introduction of fees has impacted on access to justice will be examined by the Supreme Court in March 2017. The challenge brought by UNISON was dismissed by the Court of Appeal but an appeal is scheduled for 27 and 28 March.

Workbox

Those on Workbox, our online HR portal, have access to FAQs on tribunal fees including, 'What happens if a claimant doesn't pay a fee?' and 'If a claimant wins their case, will we need to reimburse their fees?'.Have a look at the Workbox home page where you'll find a short information video, or speak to your usual Brodies' contact to discuss a free trial or subscription options.