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Will claimants have to pay to bring an employment tribunal claim?

HR professionals who are as long in the tooth as me will remember that back in 2013 the government decided to charge claimants a fee for bringing tribunal claims, and a separate hearing fee, if the case didn't settle. The total amount payable ranged from £390 for relatively straightforward claims to £1,200 for complex cases such as discrimination claims. 

Case numbers plummeted. The scheme was abruptly abandoned in 2017 after the Supreme Court ruled that the fee regime was unlawful and undermined the ability of workers to enforce their rights. 

The government said that it had not abandoned the principle of charging claimants a fee to use the tribunal system and would consider how to do this in a way that didn't undermine access to justice. Then it all went quiet. That is until yesterday, when it launched a consultation about re-introducing fees. 

Why does the government want claimants to pay a fee?

The direct running costs of the ET and EAT was around £80 million in 2022/23 and the government believes that it is right for users to help to fund this. It also points out that users have to pay fees when using other court services, such as the small claims court. that might be right in principle, but different rules apply to civil cases. For example, if a claimant wins their case they will usually recover the court fee (and other legal costs) from the respondent on the basis that the loser pays. 

Costs aren't usually recoverable in tribunal proceedings and there is no suggestion that the successful claimant will automatically be able to recover this amount from the respondent. 

How much will claimants have to pay to issue a claim?

The government has suggested, what it refers to as a “modest fee” of £55 for issuing most claims in the employment tribunal. 

Are there any exceptions?

Yes, but they are extremely limited and will only apply where an employee has to bring a claim to recover money owed to them (such as a redundancy payment) via the National Insurance Fund. This is only necessary if the employer is insolvent and can't pay its debts. 

What happens if the claimant doesn't have the money to pay the fee?

People on low incomes will be able to apply for fee remission under a scheme called “help with fees”. Eligibility depends on the amount they have in savings, any benefits they receive and their income. Detailed information is available here.

Will employers have to contribute towards these fees?

Not under the current proposal. The government doesn't say why it has not considered this.

When will tribunals start to charge fees?  

The government has said that it will introduce fees from November 2024. 

Will these plans change?

These proposals are subject to a consultation which is open until 25 March 2024. It's possible that the government will make changes after it has considered responses. However, it is only asking for views on four questions. None of these examine whether respondent employers should have to pay a fee if they choose to defend a claim or raise a counter-claim.  

How to respond

If you'd like to respond to the consultation click here

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