The return of Tribunal fees?

The Times has published an article, which suggests that the Ministry of Justice is considering bringing back Employment Tribunal fees.  It suggests that the Government is asking the Law Commission to provide recommendations on the way forward, see here for details.

The significance of Tribunal fees should not be underestimated.  Fees were brought in by the Coalition Government in 2013.  Under the old regime, some claimants would have been required to pay as much as £1,200 in fees.  While low compared with the Civil Courts, the effect of these fees on Employment Tribunal claims was stark.  Many litigants in person claimed that they could not afford these fees.  The number of claims fell by more than 70%.  Some Employment Judges were transferred to other tribunals as the number of cases fell (which would be unimaginable today).

Following a judicial review by Unison, the Supreme Court ruled that these fees were unlawful in 2017.  It was noted that it prevented access to justice and was a potential breach of EU law (with many employment rights deriving from EU Law).  The effect of this decision was almost as dramatic as the introduction of fees in the first place.  Individual claims increased by more than 90% in the year after this decision and have grown exponentially since.  Multiple (i.e. group) claims rose at an even greater rate.  Most Tribunals are now overworked with a significant backlog even before the coronavirus pandemic.

Given the current economic situation, it is perhaps unsurprising that the Government is looking to re-introduce fees.  However, it is unlikely that this will be structured in the same way.  There is speculation that employers might have to pay a fee when responding to claims i.e. filing a defence.  Another alternative is that the fees might be means tested.  We shall all watch with interest to see the Law Commission’s recommendations