5th August 2016
The House of Commons Justice Committee recently published a report on the impact of recent changes to court and tribunal fees.
A large proportion of the report considers the effect of employment tribunal fees, which have led to 70% decrease in the number of employment tribunal claims being brought. This report, whilst helpful, should not be confused with the government’s own review of the impact of employment tribunal fees, which was originally promised by the end of 2015. The government’s failure to conduct its own post-implementation review of employment tribunal fees has been much criticised.
Employment tribunal (‘ET’) fees were introduced in July 2013 and divide claims into ‘Type A’ or ‘Type B’. Type B claims attract higher fees than Type A as they are usually more complex and time-consuming. Currently, Type A claims incur total tribunal fees of £390 and Type B claims incur total fees of £1,200.
The House of Commons Justice Committee commissioned its own inquiry into the impact of these fees in 2015. The terms of reference for the inquiry included a consideration of how the introduction of ET fees had affected access to justice. The main outcomes of the report in respect of ET fees were as follows:
The Report was highly critical of the Government’s failure to finish its own review into the introduction of employment tribunal fees. The Committee, whilst conducting this inquiry, asked for an advance copy of the review, but this was declined. The Report is also quick to highlight the contrast between the swiftness with which the government introduced tribunal fees in comparison to the delay in reviewing their impact.
The Report concluded that the introduction of employment tribunal fees had a significant adverse affect on access to justice. This was because the presence of fees discouraged employers to resolve disputes early, as there was no incentive to settle with an employee who was unlikely to be able to afford the relevant employment tribunal fee.
In particular, the introduction of fees had led to a decline in smaller claims traditionally brought by lower paid workers, such as claims for unpaid wages, notice pay, holiday pay and unfair dismissal.
The Report was therefore damning in its conclusions. In particular, the Committee stressed that whilst it could accept a contribution by court and tribunal users, the introduction of fees which exceed the full cost of the operation of the court or tribunal required strong justification, and that access to justice must prevail over this. Clearly, this is not currently the case.
The Report went on to make a number of recommendations, including the publication of the government review, substantially reducing the level of tribunal fees and removing the two tier “Type A” and “Type B” fee structure in favour of a single fee, or by reference to the amount claimed, with the fee waived if the amount claimed is below a certain level.
The Report also recommended increasing the thresholds for fee remission and giving special consideration to women alleging maternity or pregnancy discrimination.
The outcome of the Report has been welcomed by the Law Society and will undoubtedly be welcomed by union Unison, whose judicial review of the ET fees is to be heard by the Supreme Court in December 2016. The Government are yet to react and the Ministry of Justice has now indicated that a full response is likely to be forthcoming in September.