Government review of tribunal fees
On the introduction of tribunal fees in July 2013, the coalition government gave an undertaking to ensure that their impact was reviewed in time. Since their introduction, there has been a marked reduction in the number of employment tribunal claims – some sources putting the reduction at around 70%. Vince Cable, has stated that “there is enough evidence to suggest that this was a very bad move and should be reversed.” The government meanwhile maintains that fees were part of the general “reduction of the burden of employment law through… successful Tribunal reforms”.
Employment Tribunal Fees Post-Implementation Review
On 11 June 2015, the government announced the start of the Employment Tribunal Fees Post-Implementation Review which will ‘consider how effective the introduction of fees has been in meeting the original financial and behavioural objectives while maintaining access to justice’. These objectives were to transfer some of the cost from the taxpayer to those who use the service, where they can afford to do so; to encourage the use of alternative dispute resolution services, for example, ACAS conciliation; and to improve the efficiency and effectiveness of the tribunal system.
In considering whether the fee and fee remission schemes have met those objectives, the review will look at the following:
• Tribunal data on volumes, progress and outcomes of cases;
• Financial information, such as income received from fees and the costs of running the system of fee recovery, and data on fee remissions;
• The general trend of employment tribunal cases before fees were introduced, and following the introduction; and
• The extent to which there has been a reduction in weak or unmeritorious claims.
Following the review, which is expected to conclude later in 2015, the government have committed to consult on any proposals for reforms to the fee and fee remissions scheme. It is not clear whether the review itself will conclude with proposals for reforms, or whether these will be a distinct, political, development.
UNISON challenge with the Court of Appeal
The above review came the week before the Court of Appeal considered the High Court’s dismissal of UNISON’s judicial review of employment tribunal fees. The R (on application of UNISON) v The Lord Chancellor and Anr hearing began in the Court of Appeal on 16 June 2015, although the decision isn’t expected for some months.
In December 2014, Unison’s application for judicial review in the High Court was rejected. The High Court was not satisfied that there was sufficient evidence that the “striking” drop in claims since the introduction of fees was due to claimants’ inability, rather than unwillingness, to pay.
In a previous judicial review decision of the High Court in February 2014, in a case also brought by UNISON, the High Court had said that the government will be under a duty to amend the fees regime if future statistics show that the “principle of effectiveness” under EU law is being infringed. This is a complex issue, but one that is likely to be at the centre of arguments in the latest hearing before the Court of Appeal.
This is an important question with big repercussions for both employees and employers, although ultimately few can predict whether the Court of Appeal is likely to require, or the government’s review is likely to recommend, changes to the fee regime.
An additional complicating factor would be if the employment tribunal fee regime was eventually devolved to Scotland.
We will keep you updated.