Employment Tribunal fees have had a "significant adverse impact on access to justice for meritorious claims”.
That is the conclusion of the House of Commons’ Justice Committee report into the impact of employment tribunal fees on access to justice for workers. The committee found that the introduction of issue fees and hearing fees for claimants in employment tribunals in July 2013 has led to a drop of almost 70% in the number of cases brought.
Fees were introduced in 2013 in two bands. Band A includes claims for unpaid wages, redundancy pay and breach of contract; the claim fee is £160 and the hearing fee is £230. Band B includes all other claims, such as unfair dismissal, discrimination and whistleblowing; the claim fee is £250 and the hearing fee is £950.
When average earnings are taken into account these fees are substantial and prohibit most workers from bringing a claim. A recent Citizens Advice survey found that 47% of people would have to save up all their discretionary income for six months to be able to bring a band B claim, and 82 per cent were put off bringing a claim at all because of the level of fees.
Statistics provided by the TUC and UNISON comparing cases brought in the first three months of 2013 and 2015 showed the following reductions in the number of cases for the most common types of claims: Working Time Directive, down 78%; unauthorised deductions from wages, down 56%; unfair dismissal, down 72%; equal pay, down 58%; breach of contract, down 75%, and sex discrimination, down 68%. The Discrimination Law Association argued that reduced access to tribunals had fallen disproportionately on women and those from traditionally disadvantaged groups. Rosalind Bragg of Maternity Action said that since fees had been introduced there had been a 40% drop in claims for pregnancy-related detriment or dismissal.
The Committee was highly critical of the quality of research before fees were introduced. This reflects the views of senior members of the judiciary and the Bar. The Ministry of Justice's long delay in publishing their own review was also criticised and the Committee called on the MoJ to publish the factual information immediately.
Wrongly in our view, the Committee has no objection to the principle of charging fees to court users. The question for them is what is an acceptable amount to charge and the priority must always be access to justice. Committee Chair Bob Neill MP said: "Where there is conflict between the objectives of achieving full cost recovery and preserving access to justice, the latter must prevail."
The Committee therefore recommends that the fees should be reduced and it is clearly their intention that the reduction should be substantial. The report suggests that the current fee regime should be replaced with either a low single fee or a fee calculated as a proportion of the amount claimed. They also recommend that the thresholds for fee remissions are increased to enable more households to benefit from them.
The report is somewhat academic in Scotland, as fees are being devolved and the Scottish Government is committed to ending them. However, it confirms many of the criticisms made by UNISON that formed the basis for our legal action against ET fees.