A Ministry of Justice consultation on reintroducing Employment Tribunal fees closed yesterday with no sign yet of a fresh legal challenge to the charges. Employee organisations have lined up to warn that the proposed scheme is impractical and discriminatory.

The MoJ scheme sets out a fee of £55 for claimants at the Employment Tribunal (England and Wales) and the Employment Appeals Tribunal. That is substantially below the fees most claimants faced in 2013-17, which were set between £390-£1,600. There have been no fees since 2017, when the government suffered a resounding defeat in a case brought by trade union Unison (pictured above).

Shantha David, Unison’s head of legal services, told the Gazette yesterday: ‘The new fees scheme is embarrassingly unbalanced between workers who must pay fees and employers who are not required to pay any fees at all. A better starting point would be “the polluter pays”, with a focus on the early resolution of problems at work, the extension of limitation to bring claims - which would take the pressure off all parties and the tribunal - and the enforcement of successful tribunal claims, which is a particular issue which must be addressed urgently.’

She noted the consultation suggested ‘this new scheme will cover only about 1%-2% of the total costs of running the tribunals’. So ‘other than to be (once more) an impediment to access to justice, it is not clear why fees are being proposed’.

Unison is not commenting on the prospect of a fresh legal challenge to a new fee scheme.

The Employment Legal Advice Network (ELAN), an umbrella group of 60 not-for-profit organisations in London, said in its own submission: ‘[The] £55 fee is unaffordable for many low-income workers, who already struggle to meet basic needs.’ Like Unison, ELAN highlighted problems with enforcement of awards, and the limited availability of ‘free or affordable advice’.

The Law Society, meanwhile, warned today that fees could diminish access to justice. ’Government needs to comprehensively investigate the impact that introducing Employment Tribunal fees would have and put in place detailed plans to ensure there is no decrease in access to justice,’ said president Nick Emmerson.

Justice minister Mike Freer MP has said: ‘The Ministry of Justice has carefully considered the 2017 Supreme Court ruling on the previous approach to fees in the Employment Tribunals and has endeavoured to ensure that the fees proposed in this consultation are proportionate and affordable, in line with the judgment.’

A statement from the ministry added: ‘The Ministry of Justice 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.’

 

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