In July 2013 the Government introduced fees for bringing employment tribunal claims for the first time. You may recall from our last blog about tribunal fees in June 2014 that Rebecca Hutchinson reported a dramatic drop in the number of claims being brought at the tribunals as a consequence of the fees regime.
Two years on what has been achieved by the introduction of tribunal fees, apart from a fall in claims?
It does not appear that fees have resulted in the better funding of the employment tribunals. The stated purpose of the fees regime was to contribute a significant part of the costs of running the tribunal system. However, as there has been a considerable drop in the number of claims being bought, it has been reported that the income generated by fees has only managed to cover 7% of tribunal costs.
At a recent conference the President of the Employment Tribunals in England & Wales, Judge Doyle, expressed the view that fees have had a “detrimental effect” on tribunals being able to meet the target of getting 75% of cases to a final hearing within 26 weeks of the issue of claim. The reduction in claims has helped in one sense, however, because those which do continue in the tribunals are now mainly claims which require a great deal of case management, longer hearing time and lengthier judgements, it means that the tribunals have found it much harder to conclude these claims before the 26 week target. Before the introduction of the fees, all regions were meeting the 75% target of progressing cases to final hearing within 26 weeks but given the nature of the cases coming through now, that figure stands at 40-50%.
And how are potential claimants feeling about the fees? A recent survey published by the Citizen’s Advice Bureau (Fairer fees: Fixing the employment tribunals system) has found that 82% of the participants who were having problems at work would be deterred from bringing a claim by the current levels of fees. The fees for employment tribunals claims are currently set at £390 for “Type A claims” these are claims such as unlawful deduction of wages and statutory redundancy pay (£160 to issue the claim and £230 for the hearing fee). The fee is then £1,200 for “Type B claims” which are claims such as unfair dismissal and discrimination claims (£250 issue fee and £950 hearing fee). The survey also identified that only 29% of the survey participants were aware that fee remission was available. Although the current level of fees would deter the vast majority of participants, when asked if they would be put off by a £50 fee, 90% said that they would be willing to pay for access to the tribunals.
There is little doubt that the introduction of fees will have deterred some individuals from pursuing spurious claims but by the same token the fees will also have deterred some individuals with genuine claims of merit from pursuing those claims. The fees are not a merit based system. A claimant can apply for remission of the fee based upon their means so there is nothing to stop those with no money from pursuing weak claims, just as they did before. In my experience many individuals who pursue misconceived claims genuinely believe in the justice of their claim, however, misguided that view may be legally. Fees are probably not deterring these individuals either, who may be borrowing money to fund a claim they believe to be right but which ultimately gets struck out or fails at hearing. There is a growing belief that the Tribunal system and the fees regime needs to be looked at again and that access to justice should not be lost in the economic and efficiency arguments.