Over the past decade employment tribunal fees have been a constant talking point; not only among employment lawyers and the legal profession but also the individuals who wish to bring claims and the businesses who defend them.
Contributor Philip Richardson, partner and head of employment law at Stephensons
In 2013, the fees were introduced by the then Lord Chancellor, Chris Grayling, with the aim of reducing the number of malicious and weak cases reaching court. It followed much criticism that the system was unbalanced in favour of the claimant.
Over the next three years, following the introduction of the fees, concerns were raised as the number of cases brought in employment tribunals dramatically reduced by approximately 80 per cent. While on the face of it, this suggested that the introduction of the fees had worked in the sense that there were less spurious claims, there were fears among many that the fees were simply unaffordable.
In 2017, in a ground-breaking ruling, the Supreme Court found that the level of fees imposed by the Government was unlawful and that it had acted ‘unconstitutionally’ in making the decision to introduce them. Fees were scrapped as a result, raising fears once again that many employees would flood the courts, bring unfounded claims and impact financially upon businesses.
The Ministry of Justice has indicated that since the scrapping of the fees, there has been a 90 per cent increase in claims. It has confirmed that it is considering the reintroduction of employment tribunal fees as a result.
While at this stage it’s not clear when fees will be reintroduced, what we do know is that many feel that some sort of compromise needs to be made. Previously claimants have had to pay steep fees starting at around £160, increasing to between £230 and £950 for further hearings. In certain circumstances, claimants had to pay up to £1,200. For many people this was simply not affordable. It meant that many people who may have been unfairly dismissed or discriminated against, were priced out of access to justice and could not pursue their claims, even if they had a particularly strong case.
From first-hand experience, we have seen an overwhelming increase in claims over the past 12 months and employment tribunals are finding it difficult to deal with the increase in demand. Regrettably, this has a knock-on effect. We’ve seen instances of simple applications to the court not being dealt with for many months when, previously, we would have had an answer within weeks.
In my view, what is needed is a new approach that is fair to both claimants and employers. The Government could consider re-introducing a fee-based structure but at a much more affordable rate that doesn’t deter or impede people from taking their claims forward. Hopefully, some careful thought and debate around this issue will strike the right balance and also force some individuals to stop and think as well as take advice before lodging their claim.
