employment tribunal fees could return

The Ministry of Justice has confirmed it may reintroduce fees for employment tribunal claims, insisting it can find a balance that helps fund the court system while being proportionate and progressive.

Richard Heaton, permanent secretary at the MoJ, confirmed yesterday before the Justice Select Committee that ministers are working on a new scheme for employment tribunal fees, following the Supreme Court’s 2017 decision to strike down the previous fee scheme as unlawful. He said that although nothing is set in stone he is confident a fee system can be found that will ensure access to justice.

Chair of the Bar Council, Andrew Walker QC, said,

People in need of justice have enough hurdles to overcome already. Many of those who need employment tribunals have been unfairly dismissed or discriminated against. It is disappointing that the Government is yet again spending time working out how to charge them to bring such claims, particularly in the absence of legal aid for most of these claims. This can only serve to undermine yet further the rights of those with legitimate grievances against their employer.

Research published last week from Professor Martin Chalkley reveals that as taxpayer financing has declined, the MoJ has become increasingly reliant on other sources of income, with a substantial part of the burden falling on those paying fees to use courts and tribunals. Between 2008 and 2018, overall justice funding fell by 27 per cent in real terms. That 27 per cent fall was reduced to 20 per cent by a huge increase in income from other sources: a 58 per cent increase in cash terms, 34 per cent in real terms. That has included an increase of 27 per cent in aggregate court fees.

Andrew Walker QC said,

Our experience with the last employment tribunal fee scheme has proved that fees deter deserving and meritorious claims. Those who cannot afford to pay a fee to use our justice system are no less deserving than those who can. As the Supreme Court has made abundantly clear, justice is not a service bought by individuals for their private benefit, nor should it be treated in this way. An accessible and effective justice system is crucial for the whole of society, underpinning all of our economic and social relationships. While modest fees may be permissible in principle, so long as full access to justice is maintained, a ‘user must pay’ philosophy is not. In light of the further cuts to the Ministry’s funding confirmed in last week’s budget, and our Justice Week survey results showing that such cuts are out of step with public opinion, the Government urgently needs to change tack, to place a proper public value on justice, and to fund it sustainably from the public purse.