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The Government has announced that it is to carry out a wide-ranging review of the Employment Tribunal (ET) fees system to determine whether its original objectives have been met. It will then make recommendations for any changes to the structure and level of fees, including recommendations for streamlining procedures to reduce costs.
The arrangements were introduced in July 2013 with a view to transferring a proportion of the costs of running the Tribunal Service from the taxpayer to users of the service who can afford to pay to do so, whilst at the same time maintaining access to justice. It was also hoped that the introduction of fees would have a behavioural impact in that it would encourage parties to seek alternative ways of resolving their disputes and discourage unmeritorious claims.
The review will examine the impact of the fee system on the volumes of claims received, taking into account the take-up of alternative dispute resolution services, including use of the Advisory, Conciliation and Arbitration Service Early Conciliation service, and other factors influencing the number of claims presented. It will also analyse data on fee remissions, including applications made, applications granted and applications refused, and on the success or otherwise of the system in meeting its financial objectives. The review will also gather evidence on the characteristics of those who use the ET and Employment Appeal Tribunal, in particular users with protected characteristics.
The public service trade union Unison was quick to challenge the lawfulness of the fee regime when it was first introduced, on the basis that it would make it 'virtually impossible, or excessively difficult' for many people of modest means to exercise their right to bring an ET claim and would discriminate against employees with a protected characteristic. Although quarterly statistics published by the Ministry of Justice have shown a substantial year-on-year fall in the number of ET claims received since fees were introduced, Unison failed to provide evidence of 'actual cases' in which workers have been denied access to justice as an effective way of redressing wrongs. The High Court did, however, observe that it was incumbent on the Lord Chancellor to keep the system under careful review to eliminate, as far as humanly possible, any indirect discrimination.
Unison was granted permission to take its case to the Court of Appeal and the hearing took place a few days after the Government announced its review. No judgment was reached at the conclusion of the hearing and it was suggested that it may take some time for the Court to come to a decision given the 'interesting and difficult' points that had been raised.