The Ministry of Justice commenced a review of Employment tribunal fees on 11 June 2015.
On 28 September 2015, the President and Regional Employment Judges submitted written evidence for this review and this is a brief summary of their views and recommendations:
- The introduction of fees has not been successful in achieving the original objectives of transferring a proportion of the costs from the taxpayer to those who use the Tribunal where they can afford to do so.
- There is little evidence that fees may have served to encourage parties to seek alternative ways of resolving their disputes.
- The Judges are concerned that as many as 6 out of 10 potential claimants who entered early conciliation neither settled their potential claim via ACAS nor subsequently presented a claim to the Tribunal.
- The imposition of a fee charged to the Respondent has not served to improve the take-up of judicial mediation conducted by the Employment Tribunal itself, despite the fact that what remains in the hearing lists are higher value, more complex, multi-day cases that would otherwise be ripe for judicially- assisted alternative dispute resolution.
- The introduction of fees has had an adverse effect upon access to justice.
- Further, they state that the fees and remission scheme acts as a very clear disincentive to bringing what might otherwise be claims that are not obviously weak or unmeritorious.
They have made the following recommendations:-
- There should be three, not two, tracks of cases: Small track, Standard track and Open track cases.
- Attention should focus upon how fees might be calibrated between the three tracks. They do not provide recommendation for what the fees should be.
- This system could be modified further by providing a discount for presentation online, for dealing with correspondence electronically and for payment online. A further discount could be offered for dealing with ‘hearings’ online or on the papers (without a hearing in person), where appropriate to do so.
- Further charging points could be incorporated e.g. where standard case management orders have been issued or where a case management hearing has been held, a fee might be chargeable for applications made thereafter or further preliminary hearings or case management.
- Respondents should pay response fees and hearing fees. This would aid cost recovery but would also promote settlement.
- Consideration should be given to the remission scheme. This is currently in place for parties who may have difficulty paying the current fees.
- Thought needs to be given to how fees are recovered or repaid.
- Fees should be recoverable as part of the statutory debt payable under the insolvency provisions.