The Ministry of Justice has recently published its review of the introduction of Employment Tribunal (‘ET’) fees. The fees were first introduced 2013 and many groups have raised concerns that they are a potentially serious barrier to bringing claims in the ET, particularly for less well off workers and those who have just lost their jobs.

The review concludes that fees are not proving a barrier to access to justice. On the issue of fees it states, “While there is clear evidence that ET fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so.”  It also asserts that the introduction of mandatory conciliation through ACAS in May 2014 has been effective in helping claimants resolve disputes, reducing the number of tribunal claims.

In contrast, unions across the board including the Public and Commercial Services Union, the TUC, and Unite have criticised the reforms, claiming that the new system has put working people in a situation where they are ‘priced out of justice’ and making the point that low-paid women are the biggest losers. Endorsing this view, the Law Society president Robert Bourns has said that some of the most affected areas are ‘claims in areas such as sexual discrimination and equal pay.’ Quoted in Personnel Today, he goes on to say, “the reduction in Tribunal cases is not offset by the increase in people using ACAS’ early conciliation service.” He also suggests that solicitors working in the field have already noted a change in employer behaviour due to the reduction in the number of claims.

Notwithstanding the above, the Ministry of Justice review acknowledges that there is room for improvement, suggesting, in particular, the following changes:

  1. An increase in the monthly income threshold for individuals to qualify for a fee waiver – bringing it up to £1,250, which, as the review explains, is broadly the equivalent of full time earnings at the national living wage rate – making Tribunals free for the lowest paid.
  2. Improving awareness of the help available to employees in relation to fees – by continuing to make reforms to the Help with Fees fee waiver scheme, as well as improving awareness of the Lord Chancellor’s exceptional power to remit fees.
  3. Removing fees for certain proceedings in the ETs which relate to insolvent employers.

The consultation period for these proposals runs until 14 March this year, the same month in which the Supreme Court is scheduled to hear a legal challenge by Unison against the introduction of fees. The consultation paper can be found here, and responses to the consultation can be submitted here.

The issue of reform of the ET system has long caused controversy. For more background and detail on some of the available data see our blog of May last year where we discussed the ACAS report analysing the performance of conciliation services. Data in that report indicated that 20% of Claimants reported withdrawing claims because ET fees were off putting.

There is no doubt that ET reform is an issue that will continue to divide opinion. Unions and employers will watch with interest as the latest developments unfold next month.