It has now been three years since the introduction of Employment Tribunal fees (ET Fees). There is an ongoing challenge to ET Fees by the union Unison, which is taking its judicial review case to the Supreme Court. The publication of the government's post-implementation review of the ET Fees, which was due by the end of 2015, is still awaited. We suspect that this will be very low on the government's current agenda, and that we can expect to continue to wait for some time for this (if in fact it ever appears).
There has been some formal review of ET Fees in the meantime. On 20 June 2016, the Justice Committee published a report titled "Courts and Tribunals fees" (the Report) to assess the impact of Tribunal fees (as well as changes to the Court fees regime) on access to justice.
The Report identifies that the impact of ET Fees has had a dramatic effect, with a 70 per cent decrease in the number of claims being issued since their introduction. It considers that, in light of this, the introduction of ET Fees has "had a significant adverse effect on access to justice for meritorious claims".
The Report is critical of the government's failure to publish its review. It also criticises the government's position that the drop in Employment Tribunal claims has been due to the introduction of ACAS Early Conciliation (which came in at around the same time) as "even on the most favourable construction, superficial".
The Report concludes that a contribution by claimants to funding their claim through the Tribunal (and Court) system is not a problem in principle, but suggests that the level of fees should generally be lower and should also be more proportionate to the complexity of the case presented. The Report also suggests an increase in the financial threshold for fee remission and special consideration for women alleging maternity or pregnancy discrimination.
It is clear that the introduction of ET Fees has had a significant impact on the numbers of Employment Tribunal claims being brought. The number of frivolous claims that we have seen since the introduction of fees has all but disappeared. This is obviously welcome news for employers. However, it simply must be the case that there are some meritorious claims which are not brought because of the fee regime. It is clear that whilst ET Fees do serve a useful and valid purpose, they also limit access to justice. Clearly a finer balancing exercise needs to take place, and changes may need to be made to the fee regime along the lines that the Report suggests. It will be interesting to see what comment the Supreme Court makes (the hearing is due to take place on 7 and 8 December 2016). However, unless it is given a pressing reason to do so, it looks unlikely at the moment that the government will make any change to the fees regime for some time.