Last week the TUC published figures which it says demonstrate that the introduction of "steep" Employment Tribunal fees has allowed "bad bosses to get away with discrimination and unfair treatment". Since fees were introduced in July 2013, it is reported that unfair dismissal claims have fallen 73%, sex discrimination claims 71%, race discrimination 58% and disability discrimination 54%.
This Wednesday, the Government has separately released a formal response to the recent Justice Commons Select Committee's report on court and tribunal fees from earlier this year. Its recommendations included a reduction in Employment Tribunal fees and improved access to fee remission. It concluded that:
"In many cases the existence of fees erects a disincentive for employers to resolve disputes at an early stage… [and] … that the regime of employment tribunal fees has had a significant adverse impact on access to justice for meritorious claims."
The Justice Committee report also set out memorable comment on the Government's promised review into the impact of Tribunal fees, as announced at the time of their introduction:
"...there are some inconsistencies in the Government’s account of the progress of its review into the impact of employment tribunal fees. It is difficult to see how a Minister can urge his officials to progress a review which they apparently submitted to him 4 months or more previously. […] There is a troubling contrast between the speed with which the Government has brought forward successive proposals for higher fees, and its tardiness in completing an assessment of the impact of the most controversial change it has made."
This is undoubtedly trenchant criticism, but the Government's response suggests that finalising and publishing its fee review remains a matter which is given, at best, limited priority:-
"The Government is finalising the post implementation review of fees and the conclusions will be published in due course […]and any proposals we have to adjust the current scheme of fees and remissions will be set out for public consultation."
Indeed, the Government's view on court and tribunal fees generally makes clear that the direction of travel is likely to be only one way:
"In 2015/16, the net cost of the courts and tribunals service to the taxpayer was £1.2 billion. This is unsustainably high and we think that it is right to reconsider the balance of funding between the taxpayer and those who use the courts and tribunals and can afford to make a larger contribution. We will continue to look for opportunities to increase fee income where they are justified."
Although there are many Brexit related uncertainties, employers can at least rest assured that the current fee regime is not going to be changed anytime soon. Having said that, paradoxically, the fee barrier may in part be driving the rise in "class action" type representative claims, where unions and/or groups of workers band together to fund test cases. These are pursued professionally and where necessary on appeal to the higher courts. Organisations which face Uber, Deliveroo (and perhaps now Amazon Logistics) style worker-status claims, or fear the equal pay risks associated with future gender pay gap reports, will not wish the current system to slip closer towards the US litigation model.
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