The Supreme Court has today given a unanimous judgement that the Employment Tribunals Fees Order 2013 (which led to a 70% reduction in claims) is unlawful and will be quashed. The Ministry of Justice then tweeted only a few hours after this judgement was announced this morning that, “the Government will take immediate steps to stop charging employment tribunal fees after court ruling @MoJGOVUK”
Click here for a full copy of the judgement.
Written by
Edward Aston
26th July 2017
The Government has formally announced that it will be reviewing Employment Tribunal Fees for both the Tribunal and the EAT including the remission scheme to see how successful it has been in achieving the original objectives. The review will make recommendations for any changes to the structure and level of fees, including streamlining procedures to reduce costs.
The review will look at evidence from a number of sources including the use of ACAS and the impact of mandatory early conciliation, the number of claims presented to Tribunal and the route they take as to whether they end up at a final hearing or not. There is no reference to evidence being sought from users or stakeholders by way of consultation at this stage. It will also consider data on fee remissions and the success rate and the income received from fees versus the costs including the costs of setting up the system.
There are no set timescales in the announcement but the review is expected to conclude by the end of the year. It is also noticeable that the timing of the announcement was just weeks away from when the Unison judicial review case on the issue of Tribunal fees is being heard in the Court of Appeal. You will of course remember from previous posts that the Government had said in Court that if the evidence was as striking as suggested for the downward trend in Tribunal cases it would voluntarily conduct its review. Perhaps it didn’t want to turn up at the Court of Appeal without having announced that it was falling through on its statement.
The Tribunal statistics for January to March 2015 have also been released which continue to echo the downward trend. The number of single claims received in that period was 25% down on the same period last year and also lower than the quarter before. Overall a decrease of 52% in single claims in 2014/2015 compared to 2013/2014. Tribunals also disposed of 68% fewer cases than the first quarter of 2014 so the figures continue to be startling reading but more optimistic news for employers who may view the statistics as good news for risk management.
24th June 2015
The High Court has delivered its Judgment on the much published case of Unison’s judicial review of the Tribunal fees. The claim failed but Unison has publically stated that it intends to appeal against the decision.
The full Judgment makes interesting reading as the Court grabbles with the balancing of the rights of those bringing the claim and the objectives of the introduction of the fees by the Government. The challenge by Unison had four points. Firstly, that the requirement to pay a fee violated the principle of effectiveness as it made it virtually impossible or excessively difficult to exercise rights conferred by the EU.
Unison produced figures to the Court which it said showed a drop of between 56 – 88% in the number of Employment Tribunal cases (depending on the type of case and the region) from the September 2012 compared with September 2013. The Government’s response was that it was too early to rely on the accuracy of the figures given, which were hotly disputed. The Court felt that that if they were anything like accurate then the impact of fees had been dramatic. The Government felt that the Court should wait and see how the scheme worked in practice and that the Claim was premature. The Court agreed the Claim was premature and gave a strong indication that if the figures are right over a longer period then this may turn out to be powerful evidence of the basis for Unison’s challenge and the Court would expect the Government to change the system without any need to litigate further.
Secondly, that the requirement violates the principle of equivalence compared with the County Court which was rejected because the Tribunal Service have now made it clear that Claimants who succeed will automatically recover their fees from the other side. Thirdly, that the fees breach the Public Sector Equality Duty and finally that the fees are indirectly discriminatory and unlawful. On both these grounds the Court found again that it was too early to assess and that as per the first ground the Government was under a duty to keep this under review.
The Court went on to comment that the difficulty with the case was the urgency with which it was brought which did not allow sufficient evidence of the impact on the number of claims to be gathered. The Court said that it seemed more satisfactory to wait and see and hold the Government to account should the optimism as to the fairness of the fees regime prove unfounded. So whilst Tribunal fees are here to stay for now this may not be the case forever. If the statistics continue to show such dramatic reductions in claims then the Government has pledged to review the matter, that is, if the appeal does not do this first. As always watch this space…
Written by
Edward Aston
12th February 2014
Section 16 of the Enterprise and Regulatory Reform Act 2013 (“the Act”) will be implemented in April 2014 according to Jo Swinson (Minister of Employment Relations). This section, when in force, will empower Tribunals to impose financial penalties on employers where they breach a workers rights and there are “aggravating features” The penalty will be 50% of any award made with a cap of £5,000 which is reduced to half if paid within 21 days of the award being made.
Over the Summer the Department for Business, Innovation and Skills had initially said that it had “no current plans” to implement Section 16 of the Act but the Minister of Employment Relations has since said, “we plan to” implement this Section “in April 2014.”
Written by
Edward Aston
25th November 2013
As of this Monday (29th July 2013) all new claims made to an Employment Tribunal or appeals to the Employment Appeal Tribunal (EAT) will carry an issue and a hearing fee payable by the Claimant. The new legislation is ordered in The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013
Claims have been split into two levels with each level carrying a different fee amount.
Type A Claims are more straight forward and hence carry a lesser fee and include cases such as unlawful deduction of wages, payment in lieu of notice and redundancy payments.
Type B Claims cover pretty much everything else including unfair dismissal, discrimination and Whistle blowing. The one anomaly is Equal Pay which currently sits under Type A although the MOJ has stated that ministers do intend to review this and Equal Pay may well sit under Type B in the future.
Please see below a table detailing the issue and hearing fees for each type of Claim for an individual Claimant
| Issue Fee | Hearing Fee | |
| Type A | £160.00 | £230.00 |
| Type B | £250.00 | £950.00 |
For claims made by a group of Claimants the fees will be as follows
| Type A | 2-10 Claimants | 11-200 Claimants | Over 200 Claimants |
| Issue Fee | £320 | £640 | £960 |
| Hearing Fee | £460 | £920 | £1380 |
| Type B | 2-10 Claimants | 11-200 Claimants | Over 200 Claimants |
| Issue Fee | £500 | £1,000 | £1500 |
| Hearing Fee | £1900 | £3,800 | £5,700 |
Claimants on low incomes or who are in receipt of certain qualifying benefits (e.g. job seekers allowance) will be able to apply for full or part fee remission details of which are detailed in Schedule three of the Order.
It is worth noting that where Claimant’s are successful in an Employment Tribunal the Employment Tribunal may make an Order for the Respondent to pay the Claimant back for the fees they have paid in addition to any other award the Tribunal will make. The current thinking is that Tribunals are likely to do this as a matter of course.
Written by
Edward ton
31st July 2013
