By Charlotte Sloan, Associate, Thomas Eggar LLP
On 29 July 2013 a fee system was introduced in both employment tribunals and the Employment Appeal Tribunal. As such Claimants are now required to pay a fee in order to bring a claim. There is also a hearing fee in the event that a matter proceeds to tribunal. The fee payable depends on the type of claim and whether the claim is being brought by a single or multiple Claimant. For single Claimants, the issue fee is either £160 for a type A claim (including an unlawful deduction of wages claim and a breach of contract claim) and £250 for a type B claim (including unfair dismissal and discrimination claims). Although there is a remission system that applies subject to applicants satisfying the relevant criteria in respect of their income and disposable capital.
The introduction of fees was a major change for the Employment Tribunals and a change that was not without controversy, with serious concerns being raised about the impact the new fee system would have on access to justice. As a result challenges were immediately brought against the new system by Unison and a Scottish law firm both making separate applications for judicial review of the new fee system. To date Unison’s application has been dismissed by the High Court but the outcome of the appeal to the Court of Appeal is awaited.
Certainly since the introduction of the new fee system there has been a drop in employment tribunal claims. Before Employment Tribunal Fees, there may have been an element of employees “trying it on”, with little to lose, by bringing a claim, but the pendulum would appear to have swung too far the other way. A weeding out of weak and vexatious claims cannot adequately explain a 75% drop in Employment Tribunal Claims since the introduction of fees. Experience over the past decade suggests that, whilst employees’ claims are often unsuccessful at Tribunal, this does not mean they were hopeless or vexatious from the start.
Chuka Umunna recently announced at the TUC conference that Labour plan to reform the current Employment Tribunal system and introduce means-testing in relation to Tribunal Fees. This provoked a reaction from the Tories and business community that the proposals will undermine job creation and economic recovery. Since the current regime already allows for low-income workers to apply for the fees to be waived and it may be that the proposed changes are not that radical, however, in that means-testing very much depends on where you set the bar.
Access to justice is a fundamental principle of our legal system, and it would seem that to achieve this objective in relation to employment tribunals, an adjustment to the current fee system is required. Whether means testing would encourage more genuine Claimants to bring claims is something to be seen. However, with the Ministry of Justice currently undertaking a review of the impact of the introduction of fees and with the spot light on the fee system at the recent party conferences it does seem to be inevitable that with, further change could be on the horizon in relation to tribunal fees.