Since the introduction of fees in the Employment Tribunal in 2013, users are now contributing between £8.5 and £9 million a year in fee income. Not a sum any government is likely to give up lightly, so the conclusions of the Ministry of Justice review into fees that the system is broadly achieving its objectives should not come as much of a surprise. Whilst it recognises that the fall in claims has been significantly larger than anticipated (approximately 70%), it concludes that there is no evidence that claimants were prevented from bringing claims by the level of fees, although some may have been “discouraged.” It is always going to be difficult to gather evidence in this area, but the speculative reasoning in the review that some people may have simply chosen not to proceed because “paying the fee might involve having to reduce other areas of non-essential spending” may be an oversimplification.
Before the introduction of fees, the Tribunal system was struggling with the number of claims being issued, and some action was needed. The introduction of early conciliation has, on the figures produced by ACAS, been beneficial in settling more cases prior to issue which is positive for all involved. The level of drop off of claims of 70% is however too large to ignore.
Fees should not be abolished. It is sensible that those who want to use the system contribute in some way to its funding, and it also helps focus the mind where a case may be more speculative. That said, the most vulnerable in society, on low wages or recently dismissed, need to be able to access the protection that Employment Tribunals can provide. The review proposes the Fee Help scheme be extended by increasing the income threshold from £1085 to £1250 a month. This, with respect, is tinkering at the edges.
As stated above, it is always going to be difficult to provide evidence of the numbers prevented by fees from bringing a claim. The Governments’ reading of the ACAS figures that only 3% of those who went to ACAS said they could not bring a claim because they could not afford to pay is clearly not the complete picture.
Having made little concessions voluntarily it still remains to be seen if the Government will be forced into change by the Supreme Court when the case of Unison v Lord Chancellor is heard at the end of March. Whilst the Court of Appeal had concluded that there was no safe legal basis for concluding that the level of fees was preventing a significant number of claimants from enforcing their rights, an examination of the evidence behind the figures may persuade the Supreme Court.
Whatever the outcome of the Supreme Court case, fees are here to stay. Whilst employers will clearly welcome the reduction in claims, the balance between preventing vexatious claims and enabling the most vulnerable in society to access justice is one that the Government still needs to find.