Could we see the return of tribunal fees?

It’s been 18 months since the introduction of employment tribunal fees was ruled unlawful by the Supreme Court, and parties were once again able to bring claims without having to pay any tribunal fees.

Sarah Collier KBL

By Sarah Collier, head of employment, KBL

The fees had only been in place since 2013, seeing individuals paying up to £1,200 to have their cases heard. The introduction of fees resulted in a dramatic decline in the number of claims issued in the Tribunal, but was later ruled to be unfairly impinging access to justice.

As a result of the Supreme Court’s decision, in July 2017 tribunal fees were abolished and Claimants that had previously paid fees were entitled to a refund. The MOJ claims it has made every effort to ensure claimants could claim refunds for fees paid and to-date over £10m has been paid in refunds.

Tribunal statistics published by the MOJ for the period April to June 2018 clearly show that the number of claims issued has risen dramatically since the abolishment of fees.

The number of single claims lodged increased by 165 per cent when compared to the same quarter, when fees were in force.  In the same period the number of claims outstanding rose by 130 per cent.

In reaching its decision, the Supreme Court did not rule that all tribunal fees were unlawful, instead it ruled that the way in which they had been implemented was impinging access to justice.

Late last year, Richard Heaton, permanent secretary at the Ministry of Justice (MOJ) spoke with MPs about the potential to bring tribunal fees back in a way that did not charge those who could not afford to pay and went on to say that whilst nothing is set in stone, he is confident that a fair system can be introduced which will ensure access to justice.

The MOJ has since confirmed that it may reintroduce fees for employment tribunal claims, claiming that it can do so in a ‘proportionate and progressive’ manner. As such, it appears that tribunal fees may be back on the agenda at some point in the future and we may see a re-introduction of tribunal fees but at a more appropriate level which is fair and continues to promote access to justice.