Government initiates Consultation on Employment Tribunal Fees: A Closer Look at the Proposals

The government has recently launched a consultation on the potential reintroduction of fees in the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT). This move follows the controversial introduction of fees in 2013, which was later deemed unlawful by the Supreme Court in 2017. The new proposal suggests a more modest fee structure with the aim of striking a balance between access to justice and the financial contributions of claimants.

In 2013, the Employment Tribunals and the Employment Appeal Tribunal Fees Order led to a significant decline of 68% in individual claims brought to the ET. The fees, ranging from £390 to £1,200, faced criticism for being unaffordable, particularly for those on low to middle incomes. In response, Unison initiated a judicial review in 2017, resulting in the Supreme Court ruling the Fees Order as an unlawful interference with the right of access to justice.

Following this decision, there was a sharp increase in the number of cases, prompting a review by the House of Commons Justice Select Committee. The committee recommended a reduction and restructuring of fees, and although the government expressed an intention to reintroduce fees, details were not provided.

On January 29, 2024, the Ministry of Justice (MoJ) launched a consultation proposing the reintroduction of a “one-off fee” of £55 for claims presented to the ET or appeals submitted to the EAT. Noteworthy aspects of this proposal include its application to all claim types, exemption for proceedings related to an individual’s right to a payment from the National Insurance Fund, and the availability of assistance through the “Help with Fees” remission scheme for those unable to afford the fee.

If implemented, these fees would come into effect from November 2024 onwards. The MoJ aims to strike a balance between access to justice and contributors covering the tribunal system’s running costs. The proposed fees, estimated to generate £1.3 – £1.7 million annually from 2025 onwards, are designed to incentivise early dispute settlement and align users of the tribunal service with other courts and tribunals.

Despite early criticism drawing comparisons to the previous regime, the proposed fee is notably lower, and safeguards such as fee assistance and exemptions are in place to address affordability concerns. This presents a uniform application of the fee aims to eliminate indirect discrimination against certain claimants, addressing past criticisms.

The consultation period ends on March 25, 2024, and further details and the consultation document can be accessed on the official Ministry of Justice website.

If you require any employment advice, please contact our Employment Law team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk