Since tribunal fees were introduced in July 2013, there has been a 67% drop in single claims. Various challenges to the fee system have failed, the most recent being the Unison challenge in the Court of Appeal which gave judgement in August 2015. Just before the court heard that case, the Ministry of Justice (MoJ) announced that it would in any event conduct a review of the fee regime. Now, the President and the Regional Employment Judges of the Employment Tribunals (ETs)have submitted written evidence in connection with that review. Some of their recommendations make interesting reading and include:
- a recommendation there be three, not two, tiers of cases so that short track cases (unpaid wages, etc.) are distinguished from more administratively heavy unfair dismissal and discrimination cases
- the Respondent to pay a response fee and a hearing fee, as is the model in civil litigation in Scotland (currently only the Claimant pays these in ETs )
- possible discounted fees for hearings online (reflecting possible wider justice reforms) or "on paper" (i.e. without a hearing in person)
- possible additional fees for certain case management or preliminary hearings (although there were some reservations about this route)
- changes to the remissions system which enables low income/low capital claimants a discount or release from the requirement to pay fees
- fees to be automatically repayable as part of any Tribunal award
- fees to be refunded in certain circumstances (e.g. if the claim is later rejected at the vetting stage)
- where the employer is insolvent and makes a claim for unpaid wages, fees to be recoverable as part of the statutory debt payable under insolvency rules
The proposals in relation to a 3 tier charging structure seem sensible if this allows potential claimants to bring straightforward, low value unpaid wages claims without having to pay a combined issue/ hearing fee of £390 as at present. The recommendations do not make any suggestions regarding level of fees. Whilst the level of fees are likely to be reviewed as part of the MoJ's review, it is highly unlikely that fees will be abolished altogether in England and Wales. Scotland, of course is a different matter since the First Minister has made it clear that she will abolish fees in Scotland which may be effective as early as 2016. We have already noted some interesting angles on "forum shopping" by possible claimants and it is likely that there will be closer attention to the rules on jurisdiction than has been the case for some time.
So far, neither the UK government nor the Courts (whether using an equality or access to justice "banner") has demonstrated a readiness to substantively relax the fee provisions and it appears that the devolved administrations offer the first sign of material reform. We await the outcome of the MoJ review and it could be that the Government will spring a further surprise from the National Living Wage "hat" of surprises but prudent gamblers will probably be keeping their stakes low on that outcome.