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1 July 2016

Employment Tribunal fees have significant adverse impact on access to justice

The House of Common's Justice Committee Report on Courts and Tribunal fees, published on 20th June 2016, says that Employment Tribunal fees have a significant adverse impact on access to justice. 

Following a consultation which took place from December 2011 to March 2012, the Government introduced Employment Tribunal fees in July 2013. For the purposes of fees, Employment Tribunal claims are divided into ‘Type A’ and ‘Type B’ claims. Type B claims, which include equal pay claims, attract higher fees because they are, generally speaking, more complex and consuming of tribunal resources than Type A claims. Fees are also higher for claims involving more than one claimant.

Employment Tribunals have been a reserved matter and the fees have applied in Scotland since their introduction. However, in September 2015 the Scottish Government announced that it would abolish the fees following the transfer of the tribunals to the Scottish Courts and Tribunals Service, meaning that equal pay claimants in Scotland will not have to pay tribunal fees.

While the Government has been carrying out a review of the impact of fees, the Committee finds inconsistencies in the in the Government’s account of the progress of its review, and points to “a troubling contrast between the speed with which the Government has brought forward successive proposals for higher fees, and its tardiness in completing an assessment of the impact of the most controversial change it has made.

While not recommending a complete removal of fees, the Committee recommends that the Government publish forthwith the factual information which they have collated as part of their post-implementation review of Employment Tribunal fees. The Committee further recommends that:
  • the overall quantum of fees charged for bringing cases to employment tribunals should be substantially reduced;
  • the binary Type A/type B distinction should be replaced: acceptable alternatives could be by a single fee; by a three-tier fee structure, as suggested by the Senior President of Tribunals; or by a level of fee set as a proportion of the amount claimed, with the fee waived if the amount claimed is below a determined level;
  • disposable capital and monthly income thresholds for fee remission should be increased, and no more than one fee remission application should be required, covering both the issue fee and the prospective hearing fee and with the threshold for exemption calculated on the assumption that both fees will be paid;
  • further special consideration should be given to the position of women alleging maternity or pregnancy discrimination, for whom, at the least, the time limit of three months for bringing a claim should be reviewed.
You can read the Committee’s full report here, the chapter on Employment Tribunals here, and the Committee’s recommendations in respect of Employment Tribunals here.

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