UNISON opinion: Why could tribunal fees be on the way back?

by UNISON’s head of legal services Shantha David

The government is consulting on reintroducing fees in the employment tribunals (ETs). If this becomes law, employees and workers will have to pay a single fee of £55 – whether they are bringing the case by themselves or as part of a group – when seeking to enforce their employment rights against their employer.

An appeal to the employment appeal tribunal (EAT) by the party challenging an ET decision will also attract a fee of £55.

Employment tribunals – or industrial tribunals as they were known until 1998 – were set up in the 1970s to provide employees and workers with an informal and accessible forum for the enforcement of employment rights.

Employment law has developed considerably since the inception of the industrial tribunals, and the ET and EAT have jurisdiction to determine more than 70 types of employment claim. Each party has had to bear their own legal costs and these new proposals will not change that.

Unfortunately, the burden of fees to challenge an employer still rests on the shoulders of the worker/employee, even where they are successful. The ability of the winning party to recoup their fee, or indeed the costs of pursuing (or defending) a claim, is a missed opportunity.

Before fees were introduced in 2013, the ETs registered 59,000 cases (individual or multiple claims) in 2012/13. This dropped to 28,000 cases in the following year. After the Supreme Court quashed the fees order, the number of cases increased from 18,000 in 2016/17 to 33,000 cases in 2022/23. Interestingly, case numbers remain below pre-fee levels.

Under the previous regime, fees ranged from £160 to £1,600. Fees were challenged in the courts by UNISON and, following a four-year legal battle – when ET claims dropped by about 69% – the Supreme Court agreed that the unaffordable fees order breached the constitutional right of access to the courts, which was essential to the rule of law and was guaranteed by Magna Carta.

UNISON celebrates its landmark victory over the scrapping of employment tribunal fees at the Supreme Court in London in 2018 with then general secretary Dave Prentis. Westminster, London. United Kingdom

UNISON celebrates its landmark victory over the scrapping of employment tribunal fees at the Supreme Court in London with general secretary Dave Prentis. Westminster, London.

The court ordered the government to reimburse about £35m in fees paid by claimants. To date, only £18.6m in fees and interest has actually been refunded, according to HM Courts & Tribunal Service’s annual report for 2022-23.

Given the government’s previous experience of ET fees, the Ministry of Justice has admitted that the 2013 scheme struck the wrong balance between recouping the costs of running the service and protecting access to justice. When fees were in place, the annual cost of running the ETs and EATS was £65.8m. Costs for 2022-23 totalled £80m.

This time around, the ministry has stated that its rationale for fees in the ET and EAT is “to relieve some of the cost to the general taxpayer by requiring tribunal users to pay for the tribunal system, where they can afford to do so”.

There is to be help with the fees scheme – the lord chancellor will have an exceptional power to remit fees. It is worth noting, however, that this exceptional power was exercised only 31 times between 2015-16, when some 86,130 individual claims (note – not cases) were presented.

In summary then, is it really worth the time and effort of recruiting additional administrative staff to collect fees? Particularly at a time when there are administrative shortages at the ET and EAT, and calls and emails are still being left unanswered.

The new fee regime is forecast to generate £1.3m-£1.7m a year from 2025-26 onwards, with an estimated income of £0.6m-£0.7m from implementation in November 2024 to March 2025.

The consultation does not indicate if these are net or gross sums. Assuming they are net, then this new scheme will only cover only about 1%-2% of the total costs of running the tribunals. What is the point of the scheme, then, other than to be (once more) an impediment to access to justice?

This article first appeared in the Law Society Gazette

The article UNISON opinion: Why could tribunal fees be on the way back? first appeared on the UNISON National site.

UNISON opinion: Why could tribunal fees be on the way back?

by UNISON’s head of legal services Shantha David

The government is consulting on reintroducing fees in the employment tribunals (ETs). If this becomes law, employees and workers will have to pay a single fee of £55 – whether they are bringing the case by themselves or as part of a group – when seeking to enforce their employment rights against their employer.

An appeal to the employment appeal tribunal (EAT) by the party challenging an ET decision will also attract a fee of £55.

Employment tribunals – or industrial tribunals as they were known until 1998 – were set up in the 1970s to provide employees and workers with an informal and accessible forum for the enforcement of employment rights.

Employment law has developed considerably since the inception of the industrial tribunals, and the ET and EAT have jurisdiction to determine more than 70 types of employment claim. Each party has had to bear their own legal costs and these new proposals will not change that.

Unfortunately, the burden of fees to challenge an employer still rests on the shoulders of the worker/employee, even where they are successful. The ability of the winning party to recoup their fee, or indeed the costs of pursuing (or defending) a claim, is a missed opportunity.

Before fees were introduced in 2013, the ETs registered 59,000 cases (individual or multiple claims) in 2012/13. This dropped to 28,000 cases in the following year. After the Supreme Court quashed the fees order, the number of cases increased from 18,000 in 2016/17 to 33,000 cases in 2022/23. Interestingly, case numbers remain below pre-fee levels.

Under the previous regime, fees ranged from £160 to £1,600. Fees were challenged in the courts by UNISON and, following a four-year legal battle – when ET claims dropped by about 69% – the Supreme Court agreed that the unaffordable fees order breached the constitutional right of access to the courts, which was essential to the rule of law and was guaranteed by Magna Carta.

UNISON celebrates its landmark victory over the scrapping of employment tribunal fees at the Supreme Court in London in 2018 with then general secretary Dave Prentis. Westminster, London. United Kingdom

UNISON celebrates its landmark victory over the scrapping of employment tribunal fees at the Supreme Court in London with general secretary Dave Prentis. Westminster, London.

The court ordered the government to reimburse about £35m in fees paid by claimants. To date, only £18.6m in fees and interest has actually been refunded, according to HM Courts & Tribunal Service’s annual report for 2022-23.

Given the government’s previous experience of ET fees, the Ministry of Justice has admitted that the 2013 scheme struck the wrong balance between recouping the costs of running the service and protecting access to justice. When fees were in place, the annual cost of running the ETs and EATS was £65.8m. Costs for 2022-23 totalled £80m.

This time around, the ministry has stated that its rationale for fees in the ET and EAT is “to relieve some of the cost to the general taxpayer by requiring tribunal users to pay for the tribunal system, where they can afford to do so”.

There is to be help with the fees scheme – the lord chancellor will have an exceptional power to remit fees. It is worth noting, however, that this exceptional power was exercised only 31 times between 2015-16, when some 86,130 individual claims (note – not cases) were presented.

In summary then, is it really worth the time and effort of recruiting additional administrative staff to collect fees? Particularly at a time when there are administrative shortages at the ET and EAT, and calls and emails are still being left unanswered.

The new fee regime is forecast to generate £1.3m-£1.7m a year from 2025-26 onwards, with an estimated income of £0.6m-£0.7m from implementation in November 2024 to March 2025.

The consultation does not indicate if these are net or gross sums. Assuming they are net, then this new scheme will only cover only about 1%-2% of the total costs of running the tribunals. What is the point of the scheme, then, other than to be (once more) an impediment to access to justice?

This article first appeared in the Law Society Gazette

The article UNISON opinion: Why could tribunal fees be on the way back? first appeared on the UNISON National site.

Unfair tribunal fees plan shows government is out of ideas, says UNISON

Commenting on the launch of a government consultation into tribunal fees, UNISON general secretary Christina McAnea said:

“The government should be tackling the real issues the country faces, not trying to pick another fight with working people.

“The fact that ministers want to reheat a failed and illegal policy shows that this is a government that ran out of ideas some time ago and needs to step aside.

“Tribunal fees denied the poorest and most vulnerable access to justice. The only people who would benefit from their reintroduction are unscrupulous bosses.

“When UNISON forced the fees to be scrapped in 2017, the UK Supreme Court said the government had acted unlawfully and unconstitutionally. Nothing has changed. Tribunal fees were unfair then and they are still unfair today.”

Notes to editors:
– The judgment UNISON v The Lord Chancellor [2017] UKSC 2015/0233 can be found here
– The seven Supreme Court judges ridiculed the government’s misunderstanding of “elementary economics, and plain common sense”, when ministers claimed higher fees would mean increased demand. The Supreme Court also stressed that the administration of justice was not merely a public service, where courts and tribunals were only of value to the “users” who appeared before them and who obtained a remedy. It also said the fall in claims when fees came in was “so sharp, so substantial and so sustained” that they could not reasonably be afforded by those on low to middle incomes.
– Employment tribunal fees were originally introduced on 29 July 2013.
– UNISON is the UK’s largest union with more than 1.3 million members providing public services in education, local government, the NHS, police service and energy. They are employed in the public, voluntary and private sectors.

Media contacts:
Dan Ashley M: 07908 672893 E: d.ashley@unison.co.uk
Liz Chinchen M 07778 158175 E: l.chinchen@unison.co.uk

The article Unfair tribunal fees plan shows government is out of ideas, says UNISON first appeared on the UNISON National site.

Unfair tribunal fees plan shows government is out of ideas, says UNISON

Commenting on the launch of a government consultation into tribunal fees, UNISON general secretary Christina McAnea said:

“The government should be tackling the real issues the country faces, not trying to pick another fight with working people.

“The fact that ministers want to reheat a failed and illegal policy shows that this is a government that ran out of ideas some time ago and needs to step aside.

“Tribunal fees denied the poorest and most vulnerable access to justice. The only people who would benefit from their reintroduction are unscrupulous bosses.

“When UNISON forced the fees to be scrapped in 2017, the UK Supreme Court said the government had acted unlawfully and unconstitutionally. Nothing has changed. Tribunal fees were unfair then and they are still unfair today.”

Notes to editors:
– The judgment UNISON v The Lord Chancellor [2017] UKSC 2015/0233 can be found here
– The seven Supreme Court judges ridiculed the government’s misunderstanding of “elementary economics, and plain common sense”, when ministers claimed higher fees would mean increased demand. The Supreme Court also stressed that the administration of justice was not merely a public service, where courts and tribunals were only of value to the “users” who appeared before them and who obtained a remedy. It also said the fall in claims when fees came in was “so sharp, so substantial and so sustained” that they could not reasonably be afforded by those on low to middle incomes.
– Employment tribunal fees were originally introduced on 29 July 2013.
– UNISON is the UK’s largest union with more than 1.3 million members providing public services in education, local government, the NHS, police service and energy. They are employed in the public, voluntary and private sectors.

Media contacts:
Dan Ashley M: 07908 672893 E: d.ashley@unison.co.uk
Liz Chinchen M 07778 158175 E: l.chinchen@unison.co.uk

The article Unfair tribunal fees plan shows government is out of ideas, says UNISON first appeared on the UNISON National site.