Reintroduction of fees in the Employment Tribunal and Employment Appeal Tribunal: Let us know your views

On Monday 29 January 2024, the Government opened a consultation on its proposal to reintroduce fees for those bringing claims or appeals in the employment tribunal system in England, Wales and Scotland, which are the employment tribunal jurisdictions currently under the purview of the UK government.

Crucially, the consultation is not about the principle of introducing fees per se, but about the level of the fees proposed and their impact.

The Detail of the Proposal

The Government states that the fees proposed will put employment tribunal users on a similar footing to those who use other courts and tribunal services and ensure that they make a contribution to the running costs of the employment tribunal service. The government anticipates raising around £1.5 million per annum in the first full year of the fee regime, which will go towards running costs that were around £80 million in 2022/2023.

However, those practicing in the field for a while will recall the decimation in ET claims numbers which followed the introduction of fees in 2013; and the subsequent Supreme Court decision in R (Unison) v Lord Chancellor, which saw an end to the ET fees in 2017. In that case, the Supreme Court found that the fees were unlawful and discriminatory, and prevented access to justice, as they were unaffordable and rendered pursuit of some non-monetary or low value claims “futile and irrational”.

So, what has changed? Under the proposed regime, the fees will be:  

1. much more straightforward – a single fee at inception of the claim, with no additional hearing fees later in the process; and
2. modest - £55 (compared with the previous fee regime cumulative fee totals of £390 for Type A claims (which covered simple disputes such as unpaid wages) and £1,600 for Type B claims which included more complex claims such as discrimination)

Other points to note:

• One single fee of £55 will apply per claim, even if there are multiple claimants
• The same fee regime will also apply to any / each decision appealed to the EAT; therefore, a claimant who is unsuccessful and wishes to appeal to the EAT will pay two £55 fees, one at the start of the ET claim and one at the point of lodging the EAT appeal. (NB if more than one decision is appealed, more than one EAT fee is payable e.g. appealing two decisions will attract £110 in EAT fees)
• As additional background context, it should also be noted that the government had already undertaken a separate consultation last year (March – May 2023), to review the entire HMCTS fee remission scheme for all civil court and tribunal fees. As a result, from 27 November 2023 thresholds have been increased so that more people with low incomes and little / no savings will be eligible under the revised fee remission scheme “Help with Fees” (HwF), than under the previous scheme.

The consultation

The key areas the government seeks views on include the following subjects:

• The “modest level” of fees (including whether higher fees could be charged)
• Whether the proposal meets the 3 underpinning principles of affordability, proportionality and simplicity
• Types of claims that should be exempt (currently only very limited / technical claims relating to gaining access to the National Insurance Fund which is relevant when employers are insolvent)
• Request for feedback on factors affecting the decision as towhether to make an ET claim or not (examples given: tribunal fees, other associated costs, probability of success, likelihood of recovering a financial award, any other non-financial motivations such as prior experience of court / Tribunal processes etc)

The consultation is running for eight weeks from 29 January until 25 March 2024.

You can read the consultation document in full on the Government website here.

Let us know your views

We intend to respond to the Government, as a firm practicing in the relevant area and on behalf of our employer clients across various sectors. Let us know your views by answering our quick questionnaire. It should take no more than 10 minutes to complete.

Please complete by Monday 18 March 2024.

Take our questionnaire