Tribunal Fees have had significant impact on access to justice
House of Commons Justice Committee finds that Tribunal fees have had a significant and unacceptable impact on access to justice
The House of Commons Justice Committee has completed its eagerly awaited inquiry into the impact of Employment Tribunal fees, focusing on the particular issue of whether fees have impacted access to justice. A report has now been published setting out the Committee’s findings and has concluded that Tribunal fees have had a significant and adverse effect on employee’s ability to access justice, with a 70% reduction in the number of claims brought since the introduction of fees.
The Committee have also been critical of the Government's “lengthy delay” in publishing its post-implementation review on the impact of Employment Tribunal fees, which was initially planned for the end of 2015 but has still not yet been published. Despite the government’s “unacceptable” failure to publish it review, the Committee have reached its own conclusions about the impact of fees, and as many employees and Trade Unions have argued since the implementation of Tribunal fees, the Committee agreed that the impact of fees has been detrimental.
On the basis of the evidence gathered, the Committee have reported that the Tribunal fees have resulted in an sharp reduction in the number of claims being issued in the Employment Tribunal. The inquiry reviewed a significant amount of evidence and concluded that fees have failed in encouraging the early resolution of disputes, but rather have had an opposite effect by deterred Claimant’s from issuing claims in the Tribunal altogether. The inquiry noted that there now appears to be no incentive for employers to settle where Claimants might have difficulty in paying the significant fees associated with proceeding to an Employment Tribunal.
The report notes that the timing and amount of reductions in claims immediately following the introduction of fees made it clear that the decline was largely a direct result of the new fee regime. The report concludes that Tribunal fees have had an unacceptable impact on access to justice, stating that:
“The arguments presented to us by the Government in this inquiry, limited as they are…have not swayed us from our conclusion, on the evidence, that the regime of employment tribunal fees has had a significant adverse impact on access to justice for meritorious claims.”
The Committee has made a number of recommendations, which include:
- Levels of Employment Tribunals fees should be substantially reduced;
- The system of using type A and type B claims should be scrapped and replaced by an alternative structure, such as a single fee or a structure proportionate to the compensation claimed and with fees waived if the amount claimed is below a specific level;
- There should be an increase in the level of fee remission thresholds; and
- Women alleging maternity or pregnancy discrimination should be given special consideration and in particular the three months deadline for bringing a claim for such individuals should be reviewed.
The Committee have suggested that any changes arising from their review should be subject to further review and possible modification, if necessary, given that it will be impossible to judge if such proposals adequately address the problems that have occurred in accessing justice in the Employment Tribunals.
Finally, the report acknowledges that the recommendations proposed will have cost implications for the Ministry of Justice but the Committee noted that any subsequent upturn in the number of genuine claims in the Tribunal would bring with it additional fee income, but further and of significant importance is that access to justice must take precedence over the income generated from Tribunal fees. Committee Chair Bob Neill MP stated "Where there is conflict between the objectives of achieving full cost recovery and preserving access to justice, the latter must prevail."
After campaigning against Employment Tribunal fees since their introduction in 2013, this will no doubt come as a welcomed development to many employee groups and Trade Unions. Many employers on the other hand may well be concerned about the implications of this. We will however have to wait and see what changes, if any, follow from the publication of this report and the resulting recommendations. Given the significant downturn in the number of Tribunal claims since the introduction of Employment Tribunal fees, it is expected that any subsequent changes to reduce the fees (particularly if any reduction is going to be ‘significant’ as has been recommended by the Committee), could result in a significant increase in the number of Tribunal claims being pursued.