Higher fees reduce access to Employment Tribunals

Posted on February 24, 2017

In 2013, the government increased the fees for taking an employment law issue to an Employment Tribunal (ET) and also introduced a fee remission scheme (the Scheme) for ET claims. Since then, concern has mounted that the combined effect of these changes has been to reduce the number of ETs and to deprive ordinary working people of access justice after suffering unfair treatment or discrimination in the workplace.

Statistics show that there are grounds for concern: in the quarter October to November 2015, there was a drop of over 70% in the number of single claims received by ETs since the new fees were introduced.

Reduced access to justice and erosion of workplace rights

The increase in fees makes it particularly hard for low paid workers in precarious jobs to bring employment claims: the lower the value of a claim, the more likely a worker is to be deterred by the fees. The increased fees arguably therefore render many employees' rights illusory in practice – particularly when considered alongside recent changes to employment law such as the increase in the qualifying period for unfair dismissal from 12 months to 2 years and the capping of compensatory awards at 12 months' pay.

Ensuring employees have access to justice is a fundamental employment right as recognised by the European Union Principle of Effectiveness: to be effective, rights must be accompanied by adequate remedies. There is no point having a right to go to an ET if the fees make it too expensive to enforce your rights. This effectively creates a deregulated workplace where employers can behave illegally knowing that employees cannot afford to take action.

Reviewing the increased fees

The concerns touched on above were echoed by the House of Commons Justice Committee in their review into Court and Tribunal fees in June 2016. The Committee proposed that the level of fees be substantially reduced and the Scheme simplified. They also called on the government to issue a long overdue review into the ET fees – a review which has only just been published.

Government review of the introduction of fees in the Employment Tribunals

The long awaited Review of the introduction of fees in the Employment Tribunal was published at the end of January 2017: it is a lengthy document. While acknowledging that the fall in ET claims has been significantly greater than originally estimated back in 2013, the government has found that:

"the original objectives (of the Scheme) have broadly been met";
"while there is clear evidence that ET fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so"; and
Acas's conciliation service is proving effective in helping just under half the people who refer disputes to them avoid the need to go to and ET. Further, where conciliation has not worked, most people go on to issue proceedings in the ET, presumably, not having been put off by the fees.

However, "the review highlights some matters of concern that cannot be ignored" and "the government has decided to take action to address these concerns".

What does the government propose?

The government proposes to extend the Scheme and introduce an immediate exemption from fees for proceedings brought to make recovery from the National Insurance Fund (which typically involve claims for redundancy payments where an employer is insolvent). The aim is to extend the scope of support available to people on lower incomes.

The government will now consult on their proposals in a consultation procedure which will end on 14 March 2017. It could then be several months before we find out the results of the consultation and the effects on the fees.

A chance to voice the concerns

Back in 2015, the then Law Society president Jonathan Smithers said: "The £1,200 that a claimant must now pay for most types of cases is close to the average monthly salary, putting a tribunal well beyond the reach of many people, particularly those on lower incomes".

Earlier this month, after the government issued its proposals and launched the consultation, current Law Society president Robert Bourns said: "The minister asserts there is 'no evidence to suggest' the fees are limiting access to justice - but the evidence in his own report suggests that tens of thousands of people are slipping through the cracks." The consultation will provide welcome opportunity for points like this to be raised.

Contact

To discuss any of the employment law issues dealt with in this article, contact Andrew Murray on 0161 785 3500 or enquire online.

Posted 24 February 2017

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