After a seven-year absence, the idea of charging fees to access employment tribunals and the Employment Appeal Tribunal has once again risen its head. The Ministry of Justice (MoJ) has launched a consultation into the re-introduction of fees, but at more modest levels than what we last saw in 2017.

Proposals to re-introduce fees

On 29 January 2024, the MoJ launched a consultation into the proposed re-introduction of “modest” fees in the ET and EAT. 

The fees are proposed as below.

Employment tribunals

A £55 issue fee payable by the claimant on bringing a claim to the ET. This fee will cover the entire journey through the ET system, rather than requiring an additional amount to be paid for a hearing, as was the case under the old system. A “Help with Fees” system will also be in place along with very limited exemptions and remissions from paying the fees.

Employment Appeal Tribunal

A £55 fee would be payable by the appellant upon lodging an appeal in the EAT. This would be payable per judgment, decision, direction or order of an ET being appealed. It would mean, eg that where a notice of appeal includes appeals against two ET decisions, a total of £110 would be payable. This is designed to reflect the method used to handle EAT appeals. When a notice of appeal contains appeals against multiple ET decisions, once the notice reaches the EAT, each decision being appealed is registered and processed individually. In the ET, on the other hand, an ET1 claim form containing multiple claims is registered as one case.

Rationale for re-introducing tribunal fees

The re-introduction of these fees will, according to Parliamentary Under-Secretary of State, Mike Freer, reduce the burden on taxpayers of the employment tribunals and put users of the system on broadly the same footing as users of other courts and tribunals where fees are already in place, thereby ensuring “cross-jurisdictional consistency”.

In its “case for introducing fees in the Employment Tribunals and the Employment Appeal Tribunal”, the MoJ states that the direct running cost of the ET and EAT was around £80 million in 2022/23. In that year around 33,000 separate cases were brought to an ET. The “modest” fees proposal would go towards relieving that cost. The consultation paper sets out the savings as follows: “Based on 2022/23 volumes and taking into account fee remissions, introducing fees … is set to generate between £0.6m and £0.7m in 2024/25 and between £1.3m and £1.7m per annum from 2025/26 onwards”.

It is also hoped that a “modest” fee may incentivise parties to settle their disputes early through Acas without the need to go to an ET. Better engagement with Acas in early conciliation would not only add value for the taxpayer’s money, but it could also help alleviate some of the current pressures faced by the ET.

Responding to the concerns in the Supreme Court case

Regarding affordability, the MoJ sets out that it believes the £55 fee would be affordable for most people. For those where it is not, the Government’s Help with Fees remission scheme has been revamped. How much help with fees individuals would be entitled to will be dependent on their income and disposable capital.

Proportionality was also a concern, as the high level of fees could in some cases “vastly exceed” the remedy of the value being sought, making seeking that value “irrational or futile”. With a significant reduction in fees levels, this is no longer likely to be the case.

Takeaway

Currently, November 2024 is being discussed for the re-introduction of tribunal fees. In 2013, a significant increase in the number of claims being brought was seen prior to the introduction of fees, and it is possible that we will see the same again should they be re-introduced. Should this happen again, some employers may see a significant increase in the claims they have to deal with.

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