The Ministry of Justice (MoJ) last week signalled that it was considering the reintroduction of fees for employment tribunal claims.
Richard Heaton, permanent secretary at the MoJ, told a committee of MPs that he thought a fee system would become available that was progressive and did not charge those who could not afford to pay.
However, he downplayed the suggestion that the imposition of a new payment regime was in any way imminent.
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The government’s tribunal fee structure, introduced in 2013, was ruled unlawful by a landmark 2017 Supreme Court judgment: R (on the application of Unison) v Lord Chancellor. Fees started at around £160 for a hearing but could cost up to £1,200.
Heaton told the House of Commons Justice select committee last Tuesday, that the judgment did not outlaw the concept of fees. He said: “I do not need to remind the Committee that the Unison judgement said that charging fees was an OK thing to do.”
Responding to a question from Ellie Reeves MP that referred to the possibility that fees might be reintroduced at a lower level, Heaton said: “I do not want to foreshadow what will be a policy announcement.”
He said the issue was a difficult one but that “You have to get the fee levels right and then you have to get the rebate scheme right. I think a fee scheme will be available, but we have not finalised it yet and there are no immediate plans to introduce one. I can see a scheme working that is both progressive and allows people out of paying fees where they can’t afford them.”
Since the fees were abolished there has been a steep rise in the number of employment tribunal claims lodged. The latest MoJ statistics, for April to June this year, show that the number of receipts for single claims more than doubled when compared with the same quarter in 2017, up to 10,996. Receipts for multiple claims more than quadrupled in the same period.
Earlier this year, the MoJ announced it was launching a recruitment drive to bring in 54 new employment judges to tackle the rise in cases.
Ranjit Dhindsa, head of employment at Fieldfisher LLP, said that law firms would not be surprised to see a fee regime reimposed in some form: “While everyone heralded the Unison victory in 2017, it was clear that case would not be the end of the story. Many employment lawyers have been waiting since 2017 for the government to propose a different fee structure that is not a barrier to access to the law or discriminatory.
“The issue is what kind of system can be introduced that will reduce the burden on the tax payer but not disadvantage individuals. In my view this issue cannot be divorced from the wider review of the tribunal and court system and whether in fact ‘super tribunals/courts’ need to be set up that specialise in dealing with certain types of claim and each charge a fee structure relevant to the type of case being dealt with. Not all employment claims are the same.”
Whistleblowing charity Protect said any reintroduction of fees would be a blow to whistleblowers.
Head of policy, Andrew Pepper-Parsons, said: “It is already extremely difficult for whistleblowers to gain access to justice. So many whistleblowers lack legal support unless they can afford to pay legal fees. Our experience from the last time fees were introduced was that whistleblowers were penalised by a system where whistleblowing case due to their complexity – attracted the highest rate of fees.
“With a fee system would Dr Chris Day have been able to fight his case, given it took almost four years and his EAT was listed for three weeks? He had to rely on Crowdjustice and the support of the public to foot his legal costs.
Any reintroduction of fees would be a “total blow for whisteblowers and for the public interest concerns they raise”.
He said Protect would urge the MoJ not to consider their reintroduction.
Keely Rushmore, a partner at SA Law, pointed out that the old fee regime was discriminatory against women in particular.
“The Unison decision criticised the old system on the basis that it prevented access to justice, in particular highlighting that the fees bore no direct relation to the value of the claim – as well as being indirectly discriminatory, as the claims that attracted the higher tier of fees were more typically instigated by women.
“Any new system will need to ensure that these issues are addressed.”
Fairly simple solution 1% of yearly wage – £20 upfront fee by employee, with the remainder being paid by the losing side.
Good cases will proceed, frivolous ones will disappear and an encouragement to settle between parties in marginal cases.
With perhaps the option for the tribunal to wave the fee irrespective of decision if the case involves defining or clarifying a law or principle not previously addressed.
Fees need to act as a deterrent to frivolous claims. Without them, there’s no reason for disgruntled employees not to ‘have a go’ even when they know they’ve been fairly dismissed. The previous fee system may not have been the right one, but it had an immediate impact on reducing frivolous and malicious claims, enabling tribunals to focus their resources on genuine cases.