The Scottish Government has announced in its Programme for Government 2015-16, entitled “A Stronger Scotland”, that it intends to abolish fees in the Employment Tribunal in Scotland. The reason for the proposal given by the First Minister in her Foreword, is “ensuring that employees have a fair opportunity to have their cases heard”.

It is still not known when the Scottish Government will move to abolish fees. This will have to take place once the power to do so has been transferred to the Scottish Parliament, as it currently still sits with the UK Government.  The Scottish Government has said it will abolish fees ‘when we are clear on how the transfer of powers and responsibilities will work’. It has also indicated that it will consult on the shape of the services that can best support people’s access to employment justice as part of the transfer of powers for the Employment Tribunals in Scotland.

Employment tribunal fees have applied in the UK since July 2013. There are various levels of fees but for an individual to have an unfair dismissal claim heard it could cost up to £1,200. There is remission available but it is in limited circumstances. Statistics released by the Employment Tribunals have demonstrated that since the introduction of fees, the number of claims being raised has dropped dramatically.

Last week the Judicial Review appeal brought by Unison was rejected by the Court of Appeal in England. One of the primary reasons for this was that the Court held that it required evidence of the actual affordability of fees in the financial circumstances of (typical) individuals. In any future challenges to the fees regime in England and Wales a comparison between the jurisdictions may be used as evidence to support the argument that the current fees regime prevents claimants having access to justice and provide the Court with the evidence it requires.

The Westminster Government is currently reviewing the fees regime. Only time will tell if we end up with a two tier employment tribunal system in relation to fees in the UK.  This certainly seems possible given that its terms have been principally around whether fees have successfully transferred costs away from the taxpayer, as opposed to wider issues of fairness. Separately, the Commons Justice Select Committee is undertaking an inquiry into court and tribunal fees, which is to consider access to justice, and it is unclear what impact this could have.  

While the story of fees continues to unfold, in Scotland at least it looks as though the relative calm of reduced employment litigation may be about to change.