Jack Boyle

Employment Tribunals date back to 1964, when they were known as Industrial Tribunals. The system has always been one which is “free” to access, in the sense that (unlike other legal jurisdictions, such as courts) there were no fees to lodge a claim.

That was the position until July 2013 when the Conservative government introduced Employment Tribunal fees for the first time.

Claimants were required to pay £250 to lodge a claim, and a further £950 if the claim was to proceed to a hearing (there were cheaper fees for simpler cases such as wages claims). There was also a remission scheme so those with limited financial means could obtain partial or full remission of these fees.

The stated aims of the 2013 fee regime included: passing on some of the cost of the system to those who used it; encouraging parties to resolve their disputes by other means (mandatory pre-claim ACAS conciliation was introduced shortly after the fee requirement); and to protect access to justice.

The impact of the fee regime was immediately apparent. In the first 12 months of the paid system, claims fell by 53 per cent.

The fee system remained in place for almost exactly four years until it was quashed by the Supreme Court, following a lengthy legal battle involving trade union Unison. The fees were deemed to be a barrier to access to justice.

It was also found they made it irrational for certain people to pursue claims and, due to the higher fees being applicable to discrimination claims, this was found to have a disproportionate discriminatory impact on women.

If we fast forward to the present day, the Labour Government’s Employment Rights Bill has received much publicity. It was promised to be the biggest shake-up of employment law in a generation and the proposed reforms are predominantly pro-employee. In the build-up to the election, it was described as a “new deal for working people”.

Against that backdrop, it might have seemed surprising when news broke recently that the government was considering re-introducing the fee-paying system for Employment Tribunals.

One of the biggest criticisms of the fee system is that it runs contrary to the principle of access to justice. This is particularly so for those in low-paid jobs, or who find themselves at a particularly low financial ebb if, for example, a recent dismissal has caused them to turn to the tribunal system.

Previous Conservative consultation identified a possible fee of £55 for using the system, when the re-introduction of fees was first batted around. While such a tariff is significantly lower than those payable a decade ago, the sum of £55 could be of vital importance to a family which perhaps relies on a sole breadwinner who has just been dismissed, and who has been treated unfairly.

Deputy Prime Minister David Lammy recently confirmed there were no plans to reintroduce fees to the Employment Tribunal. He observed: “It’s a fundamental principle that everyone, no matter their income, should be able to get access to justice to challenge unfair behaviour at work.”

What will remain to be seen is the extent to which the various rights enshrined in the Employment Rights Bill will add further pressure to the Employment Tribunal system. For employers, this means a renewed emphasis on getting the basics correct – fair procedures, open communication and early intervention. Prevention is the best defence to an Employment Tribunal claim.

Interesting times lie ahead in the world of employment law.

Jack Boyle is a partner at Blackadders