Government proposes re-introducing tribunal fees

The government is proposing re-introducing tribunal fees in employment tribunals and appeals.

This proposal will undergo a consultation period lasting eight weeks, from January 29, 2024, to March 25, 2024. The key principles behind the scheme are consistency with the approach in other courts and tribunals, similarity to the civil courts that already charge fees, and the need to generate resources for the efficient functioning of the tribunal system.

Paul Kelly, head of employment at Blacks Solicitors, shares his insights on the history of employment tribunal fees and how the new government scheme will affect access to justice.

“In 2013 the coalition government of the Conservatives and Liberal Democrats introduced the employment tribunals and the employment appeal tribunal fees order 2013, with the purported aim of un-clogging the traditionally fee-free employment tribunal (ET) service by deterring spurious claims and those without any real prospect of success. Under this fee regime, claimants would be required to pay fees upon issuing their claim, then again at various stages in the litigation.”

“The supreme court handed down its judgement in July 2017 that the introduction of the fees had been unlawful as they prevented access to justice. The practical impact of the fee regime was to price out many potential claimants and, consequently, the number of ET claims plummeted by 53% after the first 12 months of its operation.”

“Despite this troubled history with ET fees, it appears that the government is trying again to introduce a fee system into both the ET and the employment appeal tribunal. However, this time the proposal is that claimants will pay a one-off, flat fee of £55 per claim. It is anticipated that the new fee (if implemented) will cover a claim’s entire journey through the ET, however any appeal will incur another payment of £55.”

“So, if it comes to pass, will the new fee regime be a fairer system for all and help to clear the backlog of unmeritorious claims? Or will it instead decimate the overall number of claims brought (both good and bad) as it did before? Only time will tell.”

The government proposal emphasises that charging fees aligns with the general policy principle of recovering full costs. The HM Treasury handbook ‘managing public money‘ outlines this.

This approach aims to prevent the government from profiting at the expense of consumers. It also aims to ensure that unnecessary costs do not burden taxpayers. Charging modest fees is considered a way to contribute to covering the costs of operating the ET and EAT services and making resources available.

The consultation acknowledges the Lord Chancellor’s duty to protect access to justice. It also clarifies that a fee remission scheme (help with fees) is available for those unable to afford fees. The government emphasises that the Lord Chancellor’s exceptional power to remit fees also provides an additional safeguard for those facing financial difficulties.

The three key principles underlying the proposed fees are affordability, proportionality, and simplicity. The government is arguing that the proposed fees of £55 are generally affordable for claimants and appellants. This is taking into account the revised help with fees remission scheme.