The UK government has initiated a consultation process on the reintroduction of Employment Tribunal fees, almost seven years after the Supreme Court ruled them unlawful. This move has sparked debates around access to justice, affordability and the impact on the number of claims brought before the Employment Tribunals (ET) and the Employment Appeal Tribunal (EAT).
The ET and EAT were established to offer a straightforward and accessible platform for individuals to resolve workplace disputes. These tribunals operate with a focus on informality, enabling users to present their cases without the need for legal representation. However, from July 2013 to July 2017, the government introduced tribunal fees, categorizing claims into 'Type A' and 'Type B'. Type A claims (which covered simple disputes such as unpaid holiday pay) attracted an issue fee of £160 and a hearing fee of £230, totalling £390 in fees. Type B claims (which covered more complex disputes such as discrimination) attracted an issue fee of £250 and a hearing fee of £950, totalling £1200 in fees. The EAT attracted a £400 issue fee and a £1200 hearing fee, totalling £1600 in fees. The introduction led to a substantial fall in the number of claims, with cases falling by 53% in the 12 months after the fee change.
In 2017, the Supreme Court, in R (Unison) v The Lord Chancellor, declared the tribunal fees unlawful. The court found that the fees were practically unaffordable, rendering pursuing non-monetary and low-value claims futile and irrational. The fee structure was also deemed indirectly discriminatory against women and individuals with protected characteristics. Since the fees were quashed, there has been a notable increase in the number of cases, reaching around 33,000 or 39% in 2022/23.
The newly proposed fees are significantly lower, with claimants and appellants paying £55 to issue any claim at the Employment Tribunal or the Employment Appeal Tribunal, respectively. Unlike the previous regime, no hearing fee will be incurred under the government's proposals. The key principles guiding these proposed fees are affordability, proportionality and simplicity.
The Ministry of Justice (MoJ) asserts that a fee of £55 is generally affordable for claimants and appellants. A Help with Fees (HwF) remission scheme has been introduced, providing financial support to individuals with low income and minimal savings. The scheme's eligibility criteria have been revised to offer greater financial assistance, ensuring those most in need can access justice.
The government emphasizes that fees should be proportionate to the remedy sought, aiming to discourage irrational and futile claims. This principle aligns with the Supreme Court's 2017 judgment, which criticised the previous fee structure for exceeding the value of remedies sought in many cases.
Based on 2022-23 volumes, the government estimates that the proposed fees could generate between £1.3 million and £1.7 million annually from 2025-26 onwards. The consultation suggests an implementation date in November 2024.
The reintroduction of Employment Tribunal fees has sparked a contentious debate surrounding access to justice and the impact on the volume of cases brought before the tribunals. The government's emphasis on affordability, proportionality and simplicity aims to strike a balance between ensuring access to justice and preventing frivolous claims.
