It is now a well-known fact that the Employment Tribunal fees were abolished in 2017 after a challenge run by the Trade Union, Unison, reached the Court of Appeal which determined that the 2013 scheme was unlawful. As a result, the Ministry of Justice had to deal with tens of thousands of claims for refunds from parties who had paid up to £1,200 in Employment Tribunal fees. The refunds amounted to approximately £27 million.
Since the decision was made, Employment Tribunals had become free overnight and no fees were charged of the Claimants when bringing the claim. This reportedly saw a 100% increase in Employment Tribunal claims over time, after the introduction of fees had seen a decrease of 70% in claims. The abolishment of fees had also strengthened the idea of access to justice for all parties and anyone that had been wronged. Of course, it may well have opened the floodgates for vexatious litigants just the same, but we expect that those are often eliminated soon after, or certainly by the time they come in front of an Employment Judge at any stage of the litigation.
Recently, the Times had reported to seeing a request from the Ministry of Justice to the Law Commission - an independent think tank whose purpose is to review laws in England and Wales - seeking recommendations on how the fees might be reintroduced to the Employment Tribunal. This included a proposal of charging employers defending claims brought against them, however the concern is that this might open the floodgates wider for those claims that are brought without merit in a bid to strong-arm employers into paying employees instead of paying Employment Tribunal fees.
Whatever happens, we are in favour of fair and honest litigation and sometimes this means not even litigating at all. Our approach would often include a consideration of the best option of settlement and exploring where that might be appropriate and how it could be introduced for the parties. This is a consideration that we always have and advise our clients of, regardless of whether we act for employers or employees. We firmly believe that a settlement is, more often than not, in the best interest of both parties in order to save the parties, at least, the stress and cost of litigation where possible.
There are plenty of ways to avoid litigation even sooner such as having good processes in place, clear procedures and contracts that are adhered to in the work environment and a fair and honest workplace for everyone in the business.
Even if fees are to be reintroduced to the Employment Tribunal, the Ministry of Justice will have to be very cautious of what will be introduced and how. We will continue to keep abreast of the situation so that we can advise our clients, as and when this becomes a live issue. Currently, Daniel Barnett who is an expert employment law barrister at Outer Temple Chambers, stated that he believes that if the Government is really keen on reintroducing some sort of fee structure to the Employment Tribunal, it would be within the next 18 to 24 months. This means that parties would have time to prepare in advance and have knowledge of this.
This is not legal advice; it is intended to provide information of general interest about current legal issues.