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Employment tribunal fees: may be re-introduced

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Last updated 30th January, 2024.

Employment tribunal fees are not currently payable. However, the government is consulting on re-introducing them. A previous fee system was ruled unlawful in 2017.

Consultation on re-introducing fees, 2024

In January 2024, the government published a consultation on re-introducing fees in the employment tribunal and employment appeal tribunal. The proposed fee is £55 to bring a claim, or make an appeal. Consultation: Introducing Fees in the Employment Tribunals and the Employment Appeal Tribunal (gov.uk).

Those “most in need” would be supported by the general fee remission scheme, Help with Fees (HwF).

Since the 2017 Supreme Court ruling

Currently, employment tribunal claims can be submitted without fees.

Following the Supreme Court’s ruling (below) on 26th July 2017, the employment tribunal fee regime in place since 2013 was unlawful, and had been since it was introduced. This decision was based primarily on UK constitutional law: that the rule of law requires people to have access to the courts unless Parliament has clearly said otherwise. Fees paid previously should be refunded.

Increase in tribunal claims

After the abolition of fees in summer 2017, the number of single claims to the employment tribunal more than doubled. The Senior President of Tribunals: Annual Report 2019 (judiciary.uk), October 2019, said:

“In the 12 months before the abolition of fees the [employment tribunal] was receiving an average of 1,407 single claims per month. In the 12 months that followed the average was 3,047 single claims per month. Receipts are now averaging 3,314 single claims per month.”

Supreme Court ruling

R (Unison) v Lord Chancellor (bailii.org), Supreme Court, 2017
The Supreme Court unanimously ruled that the employment tribunal fee regime in place since 2013 is unlawful. Significantly in view of Brexit, the court based its decision first and foremost on UK constitutional law rather than European law. It stressed the importance of the rule of law. Inherent in that is a UK constitutional right of access to the courts. “Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.” The Supreme Court made clear that access to tribunals and other courts provides a service to society in general rather than just to individual claimants: for example resolving unclear issues of law, and society being aware that there is a remedy if legal rights are breached.

Accordingly, in the absence of clear authority in the relevant Act of Parliament, the Lord Chancellor cannot impose fees if there is a real risk that persons will effectively be prevented from having access to justice, and the degree of intrusion must not be greater than is justified by the objectives which the measure is intended to serve. The court held that the fee regime introduced in 2013 did not meet either of these tests. The court pointed for example to the long-term reduction of around 66-70% in claims accepted by tribunals. It said fees must be reasonably affordable, not just affordable in a theoretical sense. Also, rather than the fees deterring unmeritorious claims as intended there was now a larger proportion of unsuccessful claims; the fees had not encouraged settlement of claims as was intended, indeed they could deter employers from settling as employers waited to see whether the claimant would pay the fees; and it was elementary econonics that maximising the fees was not the way to maximise government revenue from them, given their deterent effect.

As regards enforcement of UK employment law which was underpinned by EU law rights (including most of UK discrimination law as it applies to employment) the fee regime was also in breach the EU law principle of effectiveness – namely that the procedural requirements for domestic actions must not be “liable to render practically impossible or excessively difficult” the exercise of rights conferred by EU law.

Lord Reed’s judgment which which all the judges agreed dealt with the issues above. A shorter judgment by Lady Hale, with which the judges also agreed, held that the fee regime was also unlawful as being indirect discrimination.

Link: Comment: Brutal and elegant – tribunal judgment will resonate for years, by Paul Rogerson, 26/7/17

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