Organised labour is predictably outraged by the resurrection of employment tribunal fees (p5). Trade unions can hardly claim to be surprised, however. The Supreme Court’s seminal 2017 judgment – hailed by Unison as the ‘biggest victory in a court in British employment history’ – did not say fees were wrong. Only that they should be set at a reasonably affordable level.

A Conservative government humiliated by a traditional foe (millions of pounds had to be refunded) was always going to bide its time. Indeed, this has never been a secret. Richard Heaton, then permanent secretary at the Ministry of Justice, told the Commons justice committee in 2018 that he was ‘confident’ a fee scheme could be devised that was both ‘progressive and allows people out of paying fees they cannot afford to’.

Why seven Tory lord chancellors since 2017 have waited over five years to publish amended plans is more of a puzzle. The pandemic did supervene. A question of priorities maybe.

Any legal challenge is on shakier ground this time. The new proposed charge – a flat £55 issue fee combined with enhanced remission arrangements – certainly meets the definition of ‘modest’. Indeed, one wonders to what extent the costs of collection will swallow up the relatively trifling £1.7m a year or so the charges are expected to raise (the ETs cost the taxpayer £80m annually).

Are we to believe, then, that the government is in earnest? That this is about the principle of tribunal users ‘contributing to running costs’, and not suppressing demand?

I am sceptical. The backlog topped 50,000 last year, with cases listed for hearing over 12 months from when the request was first made. A coming recession – if it does come – will not ease the burden.

Even a modest charge (multiplied at the appeal tribunal for each judgment, decision, direction or order appealed) will deter some speculative, spurious and vexatious claims. In one widely reported case, a serial complainant made his own cottage industry out of dozens of unsubstantiated claims against businesses that rejected his job applications. He’d think twice if he had to pay for each one.

Let’s see what happens. When the egregious Chris Grayling introduced his outsize and punitive fee regime in 2013, the number of claims slumped by more than half in three years. History might repeat itself. At only £55 a throw, though, I doubt it.

 

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