The government’s plan to reintroduce employment tribunal fees has been branded potentially unlawful by specialist lawyers. The Employment Lawyers Association (ELA) has also voiced suspicions that the real aim of the proposals is not to raise funds to support the courts, but to deter claims.
The Ministry of Justice scheme sets out a fee of £55 for claimants at the Employment Tribunal (England and Wales) and the Employment Appeal Tribunal. That is substantially below the fees most claimants paid between 2013 and 2017, which were set between £390-£1,600. There have been no fees since 2017, when the government suffered a resounding Supreme Court defeat in a case brought by trade union Unison.
In its response to an MoJ consultation, the ELA warns that a likely outcome of fees will be to further burden tribunal staff who are already struggling with a hefty case backlog. Fees ‘are likely to be a deterrent to those experiencing in-work or recently experiencing in-work poverty, so blocking access to justice’, and are ‘so irrational that they could even be deemed unlawful’, it adds.
Caspar Glyn KC, co-chair of an ELA working party on the issue, said: ‘From the evidence presented, and the government’s own admission that the new regime will cost more to run than it raises, despite the supposed aim being to reduce costs to taxpayers, the inference could be drawn that the real aim of these proposals is to deter claims which will in turn obstruct access to justice for the most vulnerable people in need of legal intervention. Further, a reduction in cases reaching the Employment Appeal Tribunal (which will also be subject to fees under the proposal) would likely impede the development of the law providing guidance and clarity to workers and their employers, particularly in the post-Brexit era where guidance will be needed on previously applied EU laws.’
Based on 2022/23 volumes, the proposed fees are expected to generate £1.3m-£1.7m a year towards the £80m annual cost of the employment tribunals.
