Consultation on proposal to reintroduce fees in the Employment Tribunals

  • The government has published a consultation paper on proposals to reintroduce fees in the Employment Tribunals and Employment Appeal Tribunal
  • The proposal is for a one-off fee of £55 payable on presentation of the claim
  • There will be no fee payable at the hearing stage
  • There will be no distinction between types of claim
  • There will be a fee remission scheme for those unable to afford the fee
  • A limited number of claims will be exempt from the fee regime

The government has published a consultation paper which sets out a proposal for introducing modest fees in the Employment Tribunals and the Employment Appeal Tribunal.

The proposed fee is a one-off £55 to bring a claim in the employment tribunal, with no further fee payable when the hearing is imminent, and no distinction (as before) between Type ‘A’ and Type ‘B’ cases. Similarly there would be a £55 to present an appeal to the Employment Appeal Tribunal.

A system for remission from fees will be in place for those who genuinely cannot afford the fees, and some very limited claims will be exempt (mainly, claims against the national redundancy fund, and claims for failure to collectively consult in large scale redundancies).

Where a claim is brought by multiple claimants, the fee would remain at £55 and ‘the claimant’ would be treated as a single entity.

In the EAT, a fee of £55 would be payable per judgment, decision, direction or order of an ET being appealed; if a notice of appeal includes appeals against two ET decisions, the total fee payable would be £110.

The consultation closes on 25 March 2024.

Fees in the ET and EAT were previously in place from July 2013 to July 2017. The 2013 fee regime categorised ET claims into ‘Type A’ or ‘Type B’ claims with different fees payable dependent on whether the claim was a Type A or Type B claim. Type A claims had an issue fee of £160 and a hearing fee of £230, totalling £390 in fees. Type B claims (which covered more complex disputes such as discrimination) had an issue fee of £250 and a hearing fee of £950, totalling £1200 in fees. EAT claims had a £400 issue fee and a £1200 hearing fee, totalling £1600 in fees.

In R (Unison) v The Lord Chancellor the Supreme Court quashed the Fees Order as it held that the fees were unlawful as (a) they were in practice unaffordable, and (b) they rendered pursuing non-monetary and low value claims – which suffered a greater fall in volumes – futile and irrational, which effectively prevented access to justice. Furthermore, the fee structure was found to be indirectly discriminatory against women and individuals with protected characteristics, who were more likely to bring Type B claims and therefore liable to pay the higher fee.

The consultation states that careful consideration has been given to the lessons learned following the Supreme Court judgment, especially in relation to affordability, proportionality and simplicity as the three key principles underpinning a fair and balanced approach to setting fees in the ET and the EAT. Given the low level of fees proposed and the simplicity of the fee regime, it seems unlikely that the current proposal would be susceptible to legal challenge in future.

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