The Ministry of Justice has published its response to last year's consultation exercise on charging fees in employment tribunals.  The Government has opted for a two stage "pay as you go" approach: claimants pay a fee to lodge a claim and another fee if the claim proceeds to hearing, payable four to six weeks before the date of the hearing.  The idea is to incentivise the settlement of claims during the process.  The new fees system is due to be become operational in the latter half of 2013.

The level of the fee will depend on the type of claim being made:

  • Level 1 – (such as breach of contract, redundancy payments, holiday pay, unauthorised deductions from wages) – £160 issue fee, £230 hearing fee
  • Level 2 – (such as unfair dismissal and discrimination claims) – £250 issue fee, £950 hearing fee
  • Although it is not clear, we think (based on the original consultation) that a claim form that contains a number of different complaints will pay the fees relevant to the "highest" level of complaint.  

Tribunals will have discretionary power to order the unsuccessful party to reimburse the successful party for any fees paid, but a suggestion that there should be a presumption that this power would be used has been dropped.

Fees will also be payable for matters such as counter-claims, applications for reviews and judicial mediation.  The fee for mediation (£600, down from the original suggestion of £750) would be paid by the respondent.  In the Employment Appeal Tribunal, fees will be £400 for the appeal and £1,200 for the hearing.

The sting in the tail, in terms of revenue collection, is that fees will be waived in accordance with the normal courts' remission system: to protect access to justice for those who cannot afford to pay a fee, most claimants on state benefits or low incomes will be exempt.  The Government acknowledges that this is likely to mean that fees will actually be collected only in a small proportion of cases and has promised a review of the remission system later this year.