What are they?

Since 29 July 2013, a prospective claimant must pay a fee before they can issue a claim in the employment tribunal. The claimant must also pay a further (and much higher) fee at a second stage, usually three or four weeks before the final hearing.

For the majority of claims (such as unfair dismissal and unlawful discrimination claims), the issue fee is £250 and the hearing fee is £950. If a claimant fails to pay the relevant fee, then their claim form will be rejected or their claim will be dismissed.

There is a remission system under which eligible applicants are excused from paying part or the entire applicable fee. This is a somewhat bureaucratic process although there have been recent attempts to simplify it.

Chilling effect?

Recently, the Ministry of Justice published tribunal statistics for the last quarter of 2013 (Q4 2013) and the first quarter of 2014 (Q1 2014).

The number of employment tribunal claims received in:

  • Q4 2013 was 9,801, 79% fewer than Q4 2012 (before fees were introduced).
  • Q1 2014 was 5,619, 59% fewer than Q1 2013 (again, before fees were introduced).

This drastic drop in the number of claims is being roundly attributed to the introduction of tribunal fees.

How have tribunal fees impacted upon tribunal litigation?

Tribunal fees have not just affected the number of claims being issued, they have also affected the types of claims being submitted and how litigation is being handled.

It appears that the number of high value claims has been impacted less than lower value claims: for example, there has been a disproportionate drop in the number of unlawful deduction from wages claims relative to, say, unfair dismissal claims.

Hearing fees are also having an effect on the timing of settlement negotiations, with employers often not making offers until the claimant has shown that they are committed to the litigation and paid the hearing fee.

Are they here to stay?

There has been significant opposition to tribunal fees from claimant representatives, trade union bodies and civil rights organisations on the grounds that the fees impede access to justice, indirectly discriminate against protected groups and breach EU principles.

UNISON, a national trade union, has sought to challenge the Government’s decision to introduce fees by way of judicial review. While unsuccessful at first instance, UNISON has been granted permission to appeal to the Court of Appeal and has intimated that it will be making use of the recent tribunal statistics in its appeal.