House of Commons Justice Committee critical of Tribunal fees
The House of Commons Justice Committee has published a report, about the introduction of Employment Tribunal fees and their effect on access to justice. It has concluded that fees have had a significant adverse impact on access to justice.
In publishing its own report, the Committee was critical of the Government’s failure to publish its own review of the impact of Employment Tribunal fees, which was originally intended to be completed by the end of 2015. The Committee said that the Government’s delays in publishing its own report, were detrimental to the Committee’s work. However, the Committee had decided that it could not wait any longer, before publishing its own report into the matter.
On the basis of the evidence which the Committee had collected during its enquiry, the Committee concluded that the introduction of issue fees and hearing fees in Employment Tribunals had led to a significant drop in the number of cases brought. The evidence suggested that, far from encouraging early conciliation and the resolution of disputes, fees were having precisely the opposite effect. In fact, fees meant that there was no incentive for an employer to settle a case, where the Claimant might have difficulty raising the fee.
The Committee concluded that the timing and scale of the reduction in claims, which occurred immediately from the introduction of fees, could leave no doubt that the majority of the decline was attributable to fees. It also concluded that the introduction of fees had had an unacceptable impact on access to justice for meritorious claims. The Committee took into account the large number of cases that had been dealt with at ACAS early conciliation. However, it considered that those cases could not be simplistically assumed to represent displaced cases that were settled satisfactorily otherwise than by being taken to Tribunal. The existence of fees was a disincentive for employers to resolve disputes at an early stage.
The Committee has recommended:-
- That the Government should publish the factual information it collated as part of its review without relay.
- That the level of fees charged for brining cases to Employment Tribunal should be substantially reduced.
- The binary type A / type B distinction should be replaced, perhaps by a single fee or by a three tier fee structure; or by a level of fee proportionate to the amount claimed, with no fee if the amount claimed is below a determined level.
- Fee remission thresholds should be more generous, and no more than one fee remission application should be required.
- Special consideration should be given to the position of women alleging maternity of pregnancy discrimination and the time limit of three months for bringing such a claim should be reviewed.
The Committee stated that it was unable to conclusively judge whether such changes would adequately address the problems which the fees posed for access to justice. It suggested that any changes implemented should be subject to further review and modification in due course. Interestingly, while recognising that its recommendations would have cost implications for the Ministry of Justice, the Committee also noted that an increase in the number of legitimate claims would in itself bring additional fee income and secondly, if there were to be a binary choice between income from fees and preservation of access to justice, the latter must prevail as a matter of broader public policy.
For further information or advice in relation to Employment Tribunals please contact a member of the employment team.