Review proposes changes to fee remission process, but rejects calls to end fees for those pursuing pregnancy and maternity discrimination claims
The Ministry of Justice’s review into employment tribunal fees, which was first due to be published in summer 2014, came as something of an anti-climax after such a long wait.
The Ministry of Justice has concluded that the regime has broadly achieved its aims and so there will be no major changes to the level of fees or how they are structured. In particular, the justice committee’s proposals for the current fee system to be replaced by mechanisms such as a single fee, a tiered fee structure or a percentage of the amount claimed were rejected.
Perhaps most controversially, the government has rejected a submission by the women and equalities committee that special consideration be given to the position of women alleging pregnancy or maternity discrimination. The review concludes that there is no evidence that pregnancy and maternity discrimination claims have been particularly affected by the introduction of fees and there is therefore no reason that they should benefit from a reduction or exemption from fees.
The review recognises that the sharp, significant and sustained decrease in employment tribunal claims since fees were introduced has been greater than originally anticipated. However, the review (perhaps a little disingenuously) largely ascribes this to the success of the mandatory Acas early conciliation scheme, arguing that Acas has helped just under half of the people who refer disputes to them to avoid the need to make an employment tribunal claim.
Notable changes
There are, however, some changes worth noting. A very small number of specific claims will now be exempt from fees and the government plans to further review and reform the remission process through which potential claimants can apply for exemption from fees on the basis that they cannot afford to pay.
The review concedes that the overall drop in employment claims highlights some matters of concern that cannot be ignored regarding access to justice – specifically the concern that employees are being deterred from bringing forward claims that have merit. To address these, the government proposes to raise the threshold for fee remission to broadly the level of a single person working full time on the national living wage. This means more people will be exempt entirely from fees and some others will contribute less towards the fee. It also proposes to simplify the remissions system and to take steps to increase public awareness of the availability of fee exemption. A short consultation on these proposals ran until 14 March.
All in all, the review is unlikely to have any real impact on the number of claims an organisation faces. The rise in the income threshold for fee remission may mean that more employees, or former employees, may now qualify and therefore choose to bring a claim. However, it is likely that even a simplified remission system will be onerous to navigate and the decision not to reduce or restructure fees means the charging regime is likely to continue to deter potential claimants from commencing litigation.
In our experience, employment tribunal fees have not removed the need for or replaced good HR practice. Ensuring that your decisions and processes are legally robust significantly reduces the risk that a potential claimant (with some access to advice) will pay the fee required to bring a claim.
Court challenge
The review may have other potential ramifications. It will be interesting to see how the final Unison challenge to employment tribunal fees will be treated when the Supreme Court hears it on 27-28 March.
The government states in the review that, while it is clear that fees have discouraged people from bringing claims, there is no evidence that they have prevented them from doing so. This was broadly part of the rationale behind the rejection of Unison’s challenge by the Court of Appeal when it heard the claim in August 2015. It is difficult to imagine what new argument Unison could introduce that would result in the Supreme Court finding that the fee regime should be scrapped or significantly changed.
Barring any big surprises when this case is heard in the spring, it appears that employment tribunal fees, in their current form, are here to stay.
Phil Allen is a partner in the employment, pensions and immigration team at Weightmans