Are tribunal fees preventing access to justice for those that need it most?

There is no question that the introduction of employment tribunal fees in July 2013 has dramatically reduced the number of claims brought each year. A House of Commons Justice Committee report last year found that fees have led to a staggering drop of almost 70% of cases. Some will argue that the precise aim of introducing fees was to reduce the number of unmeritorious claims. However, more recent evidence shows that it is women and ethnic minorities that have been affected most.

The Evening Standard recently reported that the Government are aware of an equality impact assessment which shows that the introduction of employment tribunal fees has unfairly impacted upon women and ethnic minorities. Employees with perfectly valid claims against their employer are being prevented from asserting their legal rights because they have limited means.

Our day to day experience supports this view that the access to justice currently available to employees is far too limited. There needs to be more financial support available to individuals that are suffering from discrimination at work because of, for example, their sex, race or pregnancy/maternity. Vulnerable employees who have been unfairly dismissed or suffered discrimination at work are not likely to have funds of up to £1,200 readily available in order to proceed with a tribunal claim.

The level of fees depends upon the type of claim that is being brought but common claims involving unfair dismissal or discrimination cost employees £250 to issue the claim and a further £950 if the matter continues to a final hearing. Although fee remission is available, the thresholds are extremely low meaning that not many employees can actually benefit from the so called ‘Help with fees’ regime.

The public services union, UNISON, has pursued a challenge to the lawfulness of the Fees Order which is due to be heard by the Supreme Court on 27 March 2017. The proceedings have been unsuccessful in the High Court and on appeal in the Court of Appeal but Lord Justice Underhill accepted that there were real difficulties with the quality of the evidence available at the time he ruled on the issue. He also acknowledged that the level of fees and/or the remission criteria may “need to be revisited”.

We wholeheartedly support the recommendations put forward by the House of Commons Justice Committee, including:

• substantially reducing the amount of fees charged in the employment tribunal;
• removing the fees distinction between types of claim, instead setting the fee as a proportion of the amount claimed with no fees payable under a set level;
• increasing the fee remission thresholds for disposable capital and monthly income;
• special consideration for woman alleging pregnancy/maternity discrimination.

The Ministry of Justice has still not published their post-implementation review of tribunal fees which was supposed to be completed by the end of 2015. Justice Minister, Sir Oliver Heald, told the House of Commons this week that the publication of the Government’s review is “imminent” but it is unlikely that the controversial fees will be scrapped. We will have to wait and see if access to justice for the most vulnerable in society is deemed as important as the profitability of Her Majesty’s Courts and Tribunals Service.