The House of Commons Justice Committee have published a report following its inquiry into tribunals fees which finds that the introduction of fees has damaged access to justice.

The report raises serious concerns about the quality of the Ministry of Justice’s research into the introduction of fees and the Committee shares the view expressed by the senior judiciary and some others who gave evidence that it does not provide a sufficient basis to justify the fee proposals.

The Committee finds it unacceptable that the Government has not reported the results of its post-implementation review of the impact of employment tribunal fees, one year after it began and six months after it said it would be completed, particularly as one of the reasons for the review is to establish whether or not access to justice has been maintained.

The Committee considers it is reasonable for the Government to seek to reduce the number of vexatious claims through a degree of financial risk for claimants, but noted the comment of the Senior President of Tribunals, that it is too soon after the changes to judge whether that objective is being met.

The evidence given of 83,000 cases dealt with at ACAS early conciliation to support the contention that access to justice has not been adversely affected by fees was, even on the most favourable construction, superficial. Those cases cannot be simplistically assumed to represent cases which were settled satisfactorily otherwise than by being taken to tribunal. In many cases fees are a disincentive for employers to resolve disputes at an early stage.

The Committee has no objection to the principle of charging fees to users as some degree of financial risk is an important discipline for those considering legal action. However, the arguments presented by the Government to support the introduction of fees did not sway the Committee from its conclusion that the regime of employment tribunal fees has had a significant adverse impact on access to justice for meritorious claims. The Committee state that major changes are urgently needed to restore an acceptable level of access to the employment tribunals system. The recommendations include:

• the overall 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.

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