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21 June 2016

Justice Committee report concludes employment tribunal fees have had significant adverse effect on access to justice.

The introduction in 2013 of employment tribunal fees has been controversial from the start. As a result, it is being challenged in court proceedings and reviewed in two inquiries: one by the Government and the other by the House of Commons Justice Committee. The Government was due to publish its report at the end of 2015, but six months on has yet to do so. However, the Justice Committee published its findings on 14 June 2016.

The terms of reference for the Committee’s inquiry were: whether the introduction of fees has affected access to justice and how they have affected the volume and quality of cases brought. The Committee concluded that the fees regime has had a significant adverse effect on access to justice for meritorious claims.

In reaching this conclusion it took into account a wide range of information, which included the tribunal statistics which have shown a significant drop in claims since 2013. The Committee considered the Government’s assertion that there was a pre-existing downward trend, and that changes to employment law and the improving economic situation all contributed to the reduction in claims. However, although it conceded these may be factors, its view was the timing and scale of the reduction immediately following the introduction of fees left no doubt that this was a major reason for the decline. It rejected as “at best superficial” and “simplistic” the Government’s argument that a large number of claims were dealt with by ACAS under the early conciliation procedure rather than going through the tribunal process, which meant that access to justice had not been adversely affected. It found instead that a significant amount of evidence showed that in most cases fees represent a disincentive for employers to settle at an early stage.

The Committee made a number of recommendations which include:

  • a substantial reduction in fees for bringing cases
  • the removal of the Type A/Type B distinction. Alternatives suggested include a single fee; a three-tier fee structure or a level of fee set as a proportion of the amount claimed with the amount being waived if this is below a certain level
  • fee remission thresholds to be increased; only one fee remission application should be required covering the issue and hearing fee and with the threshold for exemption calculated on the assumption that both fees will be paid
  • further special consideration to be given to the position of women alleging maternity or pregnancy discrimination and in respect of whom the three month time limit should be reviewed.

The report is very critical of the Government’s delays in producing its own report which it describes as “unacceptable and detrimental to our work”. It is notable that the Committee does not recommend abolishing fees altogether but instead suggests measures to make them more affordable. The report states that any changes which are brought in should be subject to further review and modification as it is not possible to judge if they will adequately address the constraints on access to justice.

The Government’s own report is awaited with interest. The Supreme Court is due to hear Unison’s appeal against the introduction of fees on 7 and 8 December.

This article was written by Emma Bartlett.