Are Tribunal Fees Putting Off Employees? The Jury’s Still Out

In the summer of last year, the rule on employment tribunals changed and disgruntled employees (known as claimants) were required to pay a fee, or apply for fee remission, to take their employer to court for unfair dismissal – a service which had previously been free.

There was a lot of speculation on whether this would deter people from making claims, as some wouldn’t be able to afford it and others wouldn’t risk bringing more spurious claims to court if they know they have to pay. But has it had any real impact?

Statistics published by the Ministry of Justice* in September last year showed that between January and May 2013, there were 17,000 claims received and then immediately before the implementation of fees there was a surge in claims with 42,000 lodged in June and July.  As a direct result, the number of claims in August (only 7,000) and September (14,000) was dramatically affected.  But, although there seems to be a drastic dip in the figures following the scheme going live, this is more likely to be as a result of claimants rushing to submit their claims before the fees were implemented, rather than a downturn in the number of claims being received.

So it seems impossible at this stage to have any clear idea of what impact the fees have had, and it seems this was the thinking of the High Court when considering UNISON’s legal challenge to the introduction of fees.

The High Court held that the introduction of legal fees to bring Tribunal proceedings was not unlawful, and said that the fundamental flaw in UNISON’s proceedings was that they were premature and their evidence lacked the robustness necessary to overturn the regime.

However, the High Court also commented that the fee scheme should be reviewed as its impact becomes apparent and that the Lord Chancellor was “under a duty” to keep the scheme under review and to take “remedial measures” to remove any disproportionate effects on protected groups.

The High Court also said that the fee regime may need to be subject to a few changes, for example, they suggested imposing a fee once witness statements have been exchanged so that a claimant can use that evidence to assess the strength of the case and decide whether to continue.  They also confirmed that a successful claimant should have the ability to recover their fees from the respondent before an Employment Tribunal.

Time will tell as to what the ultimate effect is but it seems the door is still open to future challenges, if not to the fees in principle, then the level of fees being applied.

*www.justice.gov.uk