Have employment tribunal fees had an impact on the number of claims?

Employment tribunal claims have all but become a thing of the past since fees were introduced on 29th July 2013, the president of the employment tribunals has said.

Giving evidence to the justice committee on fees, Judge Brian Doyle said he was concerned that 60 per cent of claimants who entered into early conciliation have not managed to settle their potential claim through mediation or presented it to the tribunal.

He said the Advisory, Conciliation and Arbitration Service (Acas) has found evidence that these people may have been dissuaded from pursuing a claim because of the prospect of fees.

Various challenges to the fee system have failed, the most recent being the Unison challenge in the Court of Appeal which gave judgement in August 2015.

Just before the court heard that case, the Ministry of Justice (MoJ) announced that it would in any event conduct a review of the fee regime. Now Judge Doyle has submitted written evidence in connection with that review.

“We consider that the introduction of fees has had an adverse effect upon access to justice,” he said.

The most obvious cases that have been affected, he added, are the short-track and standard-track cases, as the £390 fee is a considerable investment in proportion to the relatively moderate sums at stake.

Doyle suggested that the fees should be reclassified and recalibrated, such as by creating a three-track system that would charge different fees for short-track, standard-track and open-track cases.

He also called for fees to be automatically repayable as part of any tribunal award, and refunded in certain circumstances (e.g. if the claim is later rejected at the vetting stage).

But consultancy Peninsula Business Services argued that the introduction of fees has helped to deter claims that had no genuine prospect of success, and has led to a reduction in cases where a small economic settlement is the goal.

It said: “We have seen no examples of a matter raised in early conciliation, where the claimant had an arguable case but settlement could not be achieved, not continuing to tribunal as a result of fees.”

The government announced a review of employment tribunal fees back in June 2015, and its outcome is expected by the end of the year.