Employment Tribunal fees back on the agenda

Last week, the Ministry of Justice launched a public consultation on re-introducing Employment Tribunal and Employment Appeal Tribunal fees with a Claimant/Appellant (as applicable) expected to pay a one-off fee of £55 for all employment tribunal and appeal cases from inception. If implemented, fees may become payable from as early as November 2024.
 
In July 2017, the Supreme Court quashed the requirement on a claimant to pay a fee to bring a claim following Unison’s long running judicial review application that the requirement to pay a fee was unlawful. The Court held that the fee system was not a lawful exercise of the Lord Chancellor’s statutory powers because the requirement to pay fees unjustifiably interfered with access to justice, frustrated the enforcement of employment rights and discriminated unlawfully.
 
The previous fee regime, in place since 2013, resulted in a dramatic fall in the number of employment claims, with lower value claims falling the most. The Supreme Court held that to be lawful any fees must be reasonably affordable for those on low or middle incomes. The previous regime set fees at a level that meant claimants needed to restrict ordinary and reasonable living expenses to be able to afford to bring a claim and so was disproportionate in effect. Any fees paid were refunded and the number of claims increased to pre fee level. 
 
The proposed fee of £55 (regardless of the number of claimants to a claim and supported by a fee remission scheme for those on low incomes or without savings) is described by the Ministry of Justice as ‘modest’ and will apply to all claim types save for where the claimant seeks to enforce their right to payment under the National Insurance Fund. The Ministry considers the proposals focus on affordability, proportionality and simplicity and the fees will go towards running costs of the tribunals in a similar fashion to fees charges to users of other courts and tribunals. It is hoped that the proposals, if passed, will encourage parties to resolve their disputes early through ACAS or other forms of alternative dispute resolution including mediation. 
 
The consultation closes on 25 March 2024. 

If you have any queries or simply wish to find out more, please get in touch with Lyndsey Rogers.