Key takeaways

• Under the new proposals, claimants would pay a GBP 55 issue fee when they began an employment tribunal claim, and those appealing to the EAT would pay the same figure. This is substantially lower than the fees due under the previous fees regime, which was ruled unlawful in 2017.
• Some claims would be exempt from fees, and users may apply to a fee remission scheme, Help with Fees (HwF) if they are unable to afford a fee.
• The consultation suggests that the proposals, if implemented, would come into force in November 2024.
• The consultation is here and closes on 25 March 2024.

In more detail

Fees were previously introduced in 2013. Under that scheme, simple disputes attracted fees of up to GBP 390 but other claims, including unfair dismissal and discrimination, required claimants to pay a total of GBP 1,200 if their case went to a full hearing. EAT appeals cost GBP 400 to file, with a further GBP 1,200 as a hearing fee (GBP 1,600 in total). After the introduction of fees, claims dropped by 67%. The trade union Unison brought a judicial review claim. In 2017, the Supreme Court held that the fees effectively prevented access to justice, were indirectly discriminatory against women and individuals with protected characteristics (as they were more likely to be paying the higher tier of fees) and that the level of the fees was (as evidenced by the drop in claims) one which could not reasonably be afforded by those on low to middle incomes. After the ruling that the fee regime was unlawful, they were abolished, but the government said that it intended to reintroduce tribunal fees after a review. 

The Ministry of Justice recognises that the 2013 fees regime did not strike the right balance between protecting access to justice and meeting the policy objective for claimants and to meet some of the costs of the tribunal system. 

The new proposal is that a "modest" issue fee of GBP 55 be paid by the claimant bringing an employment tribunal claim, or by an appellant filing an appeal at the EAT. There are no additional fees payable on hearings. Where there is more than one claimant bringing a claim, a single fee would still be charged and the claimants would be able to agree to split it between them.

Claims brought by claimants in order to establish their right to payment from the National Insurance Fund (when their employer is insolvent) would be exempt from fees, and some individuals would be entitled to remission of fees under the wider Help with Fees scheme.

The Ministry of Justice believes that this level of fees would ensure users are paying towards the running costs of the tribunals (approximately GBP 80 million in 2022/23). The proposal, if implemented, would be expected to bring in around GBP 1.3 million – 1.7 million per year. 

Implementation is suggested to be in November 2024.

For advice or to discuss what this means for you and your business, please get in touch with your usual Baker McKenzie contact.