The Ministry of Justice could be looking to reinstate tribunal fees for workers bringing claims, according to a report in today’s Times newspaper.
The Times said it has seen confidential correspondence between Whitehall officials and the Law Commission, asking the commission to “provide recommendations for creating a coherent system for charging and updating fees in the future”.
Tribunal fees were abolished in July 2017 when the Supreme Court ruled them to be unlawful because they prevented access to justice.
They had been introduced in 2013, and Unison pursued two High Court challenges and a Court of Appeal challenge before its final successful appeal to the Supreme Court to get them removed.
The Ministry of Justice then had to deal with tens of thousands of claims for refunds after they were deemed unlawful.
According to The Times, the email to Phillip Golding, chief executive of the Law Commission – an independent body whose purpose is to review law in England and Wales – suggests that the MoJ has wanted a review of fees for some months.
In the correspondence, an official argues that the fee structure was “complicated and arguably inconsistent”, and that “fees exist for [some] things but not others”. Dave Prentis, the general secretary of Unison, said any attempt to bring back the fees “flies in the face” of the Supreme Court ruling in 2017.
At the time of the case, Unison argued that fees made it “virtually impossible or excessively difficult” for certain groups to exercise their employment rights. It found that those required to pay the highest fees – as high as £1,200 to bring a discrimination claim that went to a hearing – were disproportionately female.
The Supreme Court agreed that the fees were not reasonably affordable for households on low to middle incomes, and that they were indirectly discriminating against women. The introduction of fees had also led to a dramatic fall in the number of claims, the Court said.
Daniel Barnett, employment law barrister at Outer Temple Chambers, said that if the government was “determined” to reinstate a fees regime, it could happen as soon as the next 18 to 24 months.
He said: “A cynic might suggest the government is seeking recommendations from the Law Commission to provide a safety net before the courts in the event of any future challenge to the legality of fees, if they are reintroduced by way of statutory instrument.
“Of course, with its substantial majority, the government could introduce fees by way of primary legislation and thus avoid scrutiny by the courts.”
A Law Commission spokesman told the Times that officials “routinely meet government to discuss future law reform”, while the MoJ insisted that no decisions had been made on reintroducing the fee regime.
Julie Bann, employment partner at law firm Sharpe Pritchard, said a potential option might be to consider imposing fees on employers to defend tribunal claims.
She said: “This would resolve the issues around access to justice for employees but could result in more tribunal claims being submitted because more claimants will assume that employers will settle claims rather than pay for legal fees and tribunal fees to defend a claim.
“Clearly, employees need a viable avenue through which to seek recourse against unscrupulous employers, but employers – especially SMEs – also need to have some protection from the financial, reputational and operational harm caused by unfounded and vexatious claims.
“With the possibility of a fee structure in place within 18-24 months, many businesses could still be in recovery after this lockdown and facing fees to defend their decisions maybe just one further nail in that company’s coffin. If the proposal is to move the responsibility for the fee to the employer this must be balanced with a guarantee that the employer recoup that fee from an unsuccessful employee.
“We need a system that is balanced and accessible but that also means balancing the financial risk of litigation.”
In April, the Commission proposed extending the time limit in which an individual could bring a claim from three to six months, while the Covid-19 pandemic has also led to a delay in hearing claims.