Will labour reintroduce ET fees?

Yesterday, the Guardian newsletter published an exclusive article which said that the government is considering charging claimants a fee to bring claims in the employment tribunal before the end of the current parliament.

The newspaper said a plan was agreed in chancellor Rachel Reeves’s June spending review, as part of efforts to find savings in the Ministry of Justice budget and recover some of the costs of running the service.

Unions have already expressed concerns and believe the move could be counterproductive given the government's pledge to strengthen worker's rights.

Will it happen?

The previous government wanted to charge most claimants a “modest fee” of £55.00 to bring most types of claim in the employment tribunal. It launched a consultation and indicated that it would reintroduce fees from November 2024.  

That consultation ran from January to March 2024 and, to date, there's been no update on it. The relevant web pages simply say that the government is analysing feedback.

A Ministry of Justice spokesperson said the government had “inherited a justice system in crisis” with huge court and tribunal backlogs and widespread funding and sustainability pressures, but indicated that it hadn't yet reached a decision about fees. 

Are tribunal fees lawful?  

Fees were introduced in 2013. The total amount payable ranged from £390 for relatively straightforward claims to £1,200 for complex cases such as discrimination claims. 

Case numbers plummeted and 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 Supreme Court said that the government’s policy aims were legitimate, but the fees charged were disproportionate and denied access to justice to huge numbers of people who would otherwise have used the service. That rendered the fees unlawful but left the door open for the government to reintroduce a different fee structure.   

The government acknowledged that it had “not struck the right balance” and the matter went quiet until last year. 

The case for re-introducing fees

Running tribunals is expensive and the government doesn't have a lot of money to play with. There's already a significant backlog and its taking much longer than it should to get cases listed for hearings. That will only get worse once the huge reforms in the Employment Rights Bill 2024 start to take effect. 

Users have to pay fees when using other court services, such as the small claims court unless they are eligible for a full or partial fee remission because they lack the means to pay. And, in the civil courts, if a claimant wins their case they will usually recover the court fee (and some of their other legal costs) from the respondent on the basis that the loser pays. 

Costs aren't usually recoverable in tribunal proceedings. Under the previous fee regime, successful claimants didn't automatically get an order requiring the other side to reimburse them. Instead, employment tribunals had a discretionary power to order one party to pay the other the amount of any fees paid. This discretion was typically exercised in favour of the successful party, but it was not guaranteed in every case. 

Obviously, we don't know what the current government has in mind. But if it is going to reintroduce fees it would make sense to ask respondents to pay an equally modest fee to defend claims. That money could then be used to ensure that the system works much better for everyone involved in the process.

… and the case against

The numbers of claims plummeted under the old ET fee regime and prevented many workers, with valid claims, from obtaining access to justice.

Any new scheme must be affordable and not act as a deterrent and include a remission scheme to protect those who would not otherwise be able to obtain access to justice. 

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