It has been a little over a year since the employment tribunal fees were abolished following the Supreme Court judgment, which heavily criticised the fees and decided that they were unlawful.
So what’s happened since the abolition? Well, the number of claims being submitted to the employment tribunal office has risen, it has not been uncommon to read about the increase of cases as high as 160% or more, when comparing the number of cases being lodged, year on year. As a result the tribunals are taking longer to revert to applications and hearings are going down in the diary many months in advance.
Re-introduction of the employment fees
Despite the heavy criticism received by the Supreme Court, the government has confirmed they are considering re-introducing employment tribunal fees, though no immediate plans have been formalised.
The Ministry of Justice have made a statement that they feel confident that they can formulate a fee structure that helps to fund the tribunal system, but does not deny individuals’ access to justice.
The government has never ruled out a return to a fee structure for claimants to bring claims at the employment tribunal and relies on the Supreme Court judgment, which does not explicitly state that fees cannot be charged to bring such claims.
The plans may be popular for organisations, hoping for a return for the days where claimants were put off from bringing claims, especially unlawful withholding of wages claims, because of the fees. At their highest the fees were £1,200 and resulted in a drop off of claims of circa 80%.
However, the proposal is not popular with everyone and the Bar Council has hit out at them, with Andrew Walker QC, Chairperson for the Bar Council stating that “people in need of justice have enough hurdles to overcome already”.
We consider that it is a difficult balancing exercise for the government between maintaining access to justice and funding the tribunal system. That being said, it is perhaps premature to be revisiting this at this stage, given that the government has currently paid out only circa £15.8M out of the estimated £33M of refunds due to claimants.