Anthony Gold’s Response to the Government’s Introduction of fees in the Employment Tribunals and the Employment Appeal Tribunal

In a recent submission to a Government consultation, we voiced our strong opposition to the proposed claimant issue fee of £55 for Employment Tribunals (ET) and the Employment Appeal Tribunal (EAT). Our response challenges the Ministry of Justice’s (MoJ) rationale and highlights the harmful effect fees would have on the ability of individuals to enforce their employment rights in practice, and the damage to the public good of maintaining strong compliance with employment law across all sectors.

Our commentary

The introduction of a £55 issue fee for ET claimants would have a detrimental impact on the public benefit derived from employees and workers being able to freely and easily obtain redress if their employer fails to comply with the law.

The MoJ’s narrow focus in its Consultation Proposal overlooks the broader implications of deterring claimants, which would weaken the entire framework of employment protection. The ET claims that are brought, although relatively few, are crucial in maintaining the confidence employees and employers have that the employment protections enacted by Parliament are applied in reality in all workplaces.

As the Supreme Court said in their ruling that the imposition of ET fees on the last occasion was unlawful, in R (Unison) v The Lord Chancellor [2017] UKSWC 51,

“There is a further matter, which was not relied on as a separate ground of challenge but should not be overlooked. That is the failure, in setting the fees, to consider the public benefits flowing from the enforcement of rights which Parliament had conferred.” (at paragraph 102)

Our response also challenges the MoJ’s justifications for the proposed fees. Contrary to the MoJ’s position, there is no good reason why fees should be charged in ETs just because courts charge fees. This is to disregard the history of Employment Tribunals the unique role they play in our justice system.

The effect of the fees

We draw attention to the fact that the proposed fees would disproportionately affect vulnerable claimants, including those in economically weak positions or working in non-unionised sectors, who are most in need of protection. The facility to apply for fees remission is no answer to this as it places a further barrier of uncertainty and detailed form filling for claimants to overcome.

This deters claimants who are vulnerable for other reasons such as:

• lack of aptitude in form filling,
• being time poor where they need to work several jobs to make ends meet,
• a lack of the support of a trade union or the ability to pay for legal advice,
• English not being their first language,
• finding the process difficult due to a disability or temporary illness.

The MoJ, focuses on consistency with other courts and tribunals and reducing costs to the taxpayer. However, this overlooks the historical success of ETs operating without fees and their unique importance in providing accessible justice to employees and workers, especially the low paid.

The MoJ’s argument that to charge fees would both reduce cost to the taxpayer and, at the same time, generate resources to reinvest into is flawed. The fees generated cannot both save the taxpayer and be used to improve the service. (On the last occasion fees were charged, the MoJ used the resulting fall in ET claims to reduce the resources allocated to ETs which has contributed to the current long delays in reaching a final hearing.)

The amount the MoJ expects to raise by charging fees would have an insignificant impact on overall costs while causing considerable harm to individual claimants and societal enforcement of employment standards.

Conclusion

Our submission unequivocally opposes the proposed fees at all levels of the ET and EAT processes, advocating instead for maintaining free and unfettered access to justice for employees and workers. The proposal, in our view, fails to meet the principles of affordability, proportionality, and simplicity, which the MoJ says it is seeking to apply, and places significant barriers in the path of those seeking to enforce their employment rights.

For those interested in exploring the detailed reasoning and arguments presented in our consultation response, I invite you to read our full submission here.

The importance of this issue cannot be overstated, as it goes to the fundamental rights of workers and the integrity of our employment justice system.

Join us in advocating for a fair and accessible tribunal process, free from financial barriers that deter rightful claims and erode our collective employment protections.

Please do contact Joy Drummond on 020 7940 4012 or email her at jdm@anthonygold.co.uk if you have any questions.