Employment Tribunal Fees? Not again....

16/06/20

MM

The Supreme Court decision of R (UNISON) v Lord Chancellor [2017] UKSC 51 saw the end of Tribunal fees nearly three years ago.

That regime had resulted in a 70% reduction in Tribunal claims. The judgment was clear - there was a "real risk" that fees prevented access to justice. The Court ruled that they were not set at a level that everybody could afford.

Could the government now be attempting to circumvent a surge in post lockdown Tribunal litigation? With COVID-19 and Brexit occupying the legislative agenda, this is unlikely to be a move that will be enacted quickly but there are rumours (The Times) that the Ministry of Justice have asked the Law Commission to "provide recommendations for creating a coherent system for charging and updating fees in the future."

The recent (28.4.20) Law Commission report "Employment Law Hearing Structures" whose remit was to "review and make recommendations for reform" of the jurisdiction said nothing about Tribunal fees being part of a future landscape.

To be fair, UNISON left the door open for a new fees regime with fees at a lower level or with both Claimants and Respondents both subject to fees for progressing a claim with the Court concluding that "it had not been shownthat less onerous fees, or a more generous system of remission, would have been any less effective in meeting the primary objective of transferring the cost burden of the ET and EAT systems to users. Nor had fees at the level set in the Fees Order been shown to be necessary to achieve the Government's secondary aims of incentivising earlier settlement and disincentivising the pursuit of weak or vexatious claims."

If this rumour is correct, asking the Law Commission to conduct this review gives the Government some level of cover - it will be a carefully researched piece of work with wide consultation but a report (and so theswiftreintroduction of fees) is unlikely to be enacted any time soon but parties should clearly consider the likelihood of a return to a fees regime within the jurisdiction. 

Martin Mensah - @emplawyeruk

Head of Employment Practice Group