Are tribunal fees on their way back?

The government has recently issued a consultation paper on re-introducing fees in employment tribunals and the Employment Appeal Tribunal.

Tribunal fees were previously introduced in 2013. They were subject to judicial review in Unison v The Lord Chancellor and, in 2017, were found to be unlawful as an impediment to access to justice.

In the consultation paper, the government says it has considered the impact of the Supreme Court’s 2017 judgment in Unison v The Lord Chancellor and proposes to introduce only ‘modest fees’. The Ministry of Justice admits the former fees ‘did not strike the right balance’ between claimants paying toward tribunal costs and protecting access to justice.

The key proposed fee is £55 to bring a claim to the employment tribunal. It is a one-off fee, with no further fee payable when the hearing is imminent, and no distinction between different types of cases. The fee will be £55 whether it is a single claimant or a multi-party action. Similarly, there would be a £55 to start an appeal in the Employment Appeal Tribunal. A system for remission from fees will exist for those who genuinely cannot afford the fees (as defined by the government). The consultation closes on 25th March 2024.

By pitching the fees at a ‘modest’ level the government is unlikely to be vulnerable to an attack on an ‘access to justice’ basis as they were before. The fees are so ‘modest’ that it’s questionable whether their introduction is worth the time and money that will be spent consulting on them and putting the mechanisms in place to levy them! It also remains to be seen whether the fees will be implemented in advance of any general election and if any new government will seek to reverse the changes.