Re-introduction of fees in the Employment Tribunals and the EAT?

HR professionals will remember that, in 2017, the Supreme Court held that the Employment Tribunals fees regime (introduced in 2013) was unlawful and, in consequence, fees were abolished. The Government says that it has carefully considered the 2017 Supreme Court ruling on the previous approach to fees and has endeavoured to ensure that the proposed new fee regime is proportionate and affordable and therefore in line with the Supreme Court’s judgment. It recognises that the fees introduced in 2013 did not strike the right balance between meeting the policy objective for claimants to meet some of the costs of the ET and EAT and protecting access to justice.

Those who cannot afford to pay the proposed fees will be supported by a fee remission scheme called Help with Fees (HwF) under which eligible applicants will be entitled to either partial or full remission.

The proposed fee of £55 is a one-off flat fee to start a claim in either the Employment Tribunal or the EAT, with no further fee payable when the hearing is imminent. The fee will be £55 whether it is a single claimant or a multi-party action.

A 2018 Survey of Employment Tribunals Applications found that the overall median value of financial compensation received by claimants successful at a hearing was £5,000. Some claimants sought non-monetary awards such as re-instatement or a declaration of contractual rights. Against this background, the Government has recognised that Employment Tribunal fees should not be set at a level that could render pursuing low value or non-monetary claims irrational and futile.

Our comment

It is unlikely that a one-off, flat fee of £55 to bring a claim would be seen as a bar to access to justice (indeed, similar fees apply to bring claims in the civil courts). Unlike the previous fee regime, the proposal seems simple and proportionate, and it is unlikely that it would be especially vulnerable to a legal challenge.

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