Last week, the government published a consultation paper on the prospect of re-introducing fees in both the Employment Tribunal (“ET”) and the Employment Appeal Tribunal (“EAT”).
In July 2013, ET and EAT fees were introduced by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. The fee regime categorised ET claims into Type A or Type B. Type A claims involved simple disputes, with an issue fee of £160 and a hearing fee of £230, and Type B claims involved more complex disputes, which had an issue fee of £250 and a hearing fee of £1200. The EAT attracted a £400 issue fee and a hearing fee of £1200.
Before this date, there was no requirement for claimants to pay a fee to bring an employment-related claim, even though fee requirements exist in other courts and tribunal jurisdictions. As a consequence of the fee introduction, there was a significant decrease in the number of ET cases lodged, with a 53% fall in case volume within twelve months of implementation.
However, this changed in 2017 with the Supreme Court case of R (on the application of UNISON) v Lord Chancellor, which quashed the Fees Order and held that it was an unlawful interference with the common law right of access to justice. Further, it was held to be indirectly discriminatory under Equality Act 2010 since a category of claim, Type B, was found to place women at a particular disadvantage because a higher proportion of women brought Type B claims than Type A. Ultimately, the charging of higher fees was not a proportionate means of achieving the stated aims of the Fees Order.
In acknowledging the Supreme Court case and the issue of affordability, the government consultation proposes to introduce “modest” fees of £55 for bringing a claim in either the ET or the EAT. Furthermore, to ensure access to justice, there is a proposal to provide support through the revised Help for Fees remission scheme, which would act as a safeguard for those with no disposable means to issue proceedings.
The rationale for the proposal is to create a level of consistency with other courts and tribunals and to generate resources to re-invest into ACAS and the tribunal service, reducing the potential cost to the taxpayer. The government has also cited that the fees may incentivise the parties to settle any disputes at an early stage.
Finally, the consultation addresses the potential impact of the proposed fees. Whilst seeking to generate income to support the functioning of the tribunal service, it is envisaged that there may be a reduction in the volume of applications to the ET of 20%, although it is recognised that this is difficult to predict. Indeed, there remains uncertainty as to the exact impact of such a change, both on the number of claims issued and in respect of any wider impact issues that may arise, such as indirect discrimination.
Natasha Otero is a Pupil in the Employment Team under the supervision of Louise Quigley and Martin Mensah. She is commencing her second six practising period on March 5th 2024.