Employment Tribunal Fees and What You Can Do About Them

Despite the frivolities of office life as Christmas approaches, the last week has had a bleak edge for many in the employment law world, after judgment was handed down in the judicial review brought by UNISON against employment tribunal fees. The solicitor and blogger, Kerry Underwood, was even inspired by the news to write an entertaining tribute to A Christmas Carol, with Lord Justice Elias and Mr Justice Foskett cast in the role of Ebeneezer Scrooge.

The issue of employment tribunal fees has not received nearly as much media attention as those of legal aid cuts or the attempt to restrict judicial review but, in many ways, it is just as important. The battle for equality is fought mainly in the workplace and equality law is litigated mainly in the employment tribunal.

As a result of the introduction of fees, there has been an enormous drop in the number of discrimination claims which have been brought. The exact size of the decrease is disputed but the parties to the High Court action were agreed that the overall number of claims of all types had dropped by between 60 and 80%. If anything, the fall in discrimination claims has been even greater. There is no point protecting people against discrimination if their rights cannot be enforced.

When fees were introduced, the government claimed during the consultation that it had no intention of deterring claims. But it clearly has. And there is no evidence that the claims which have been deterred are particularly weak. An analysis by the policy researcher, Richard Dunstan, on his blog shows that the percentage of successful claims has barely changed, a conclusion supported in a blog post by Michael Reed, legal officer at the Free Representation Unit.

This was UNISON’s second judicial review. The first one had been dismissed in February on the grounds that it had been too early to say what the impact of fees would be, because the figures had yet to become available. In the rerun, the High Court festively evoked a winter train journey by declaring that, once again, there was the “wrong kind of evidence“. It now stated that it wanted to hear about individuals who had been affected, rather than just raw statistics.

The government’s argument, which the court seemed to accept, was a strange one, as revealed by paragraph 58 of the judgment. It has clearly abandoned its earlier stance that it does not want to deter weak cases but it now takes it much further, admitting without apparent concern that litigants will also be put off from gambling even in claims of medium strength, cases which can often depend on how the evidence falls. The problem, of course, is that almost all employment tribunal claims fall into this category. As the High Court concedes in paragraph 61, this will result in a “cautious approach to litigation”, to the clear advantage of disreputable employers, who have an incentive to fight on when they are weak, in the hope that the employee cannot afford to take matters any further.

But can I hear distant sleigh bells? Is there a tiny glimmer of hope to be found within the gloom? Perhaps. UNISON intends to appeal to the Court of Appeal and a government review of employment tribunal fees is ongoing. Meanwhile, the Labour Party has promised reform if it is elected. This has been reported in some places as meaning that it will scrap fees altogether but, reading between the lines of Chuka Umunna’s speech, this is not quite what he says. He simply wants tribunals to become affordable. And the Liberal Democrat employment minister, Jo Swinson, has reportedly taken on Conservative colleagues over fees, raising the possibility that her party’s manifesto will also propose reform.

Employment tribunal fees in Scotland are likely to be affected by devolution and it is thought that the Scottish National Party will reduce fees there. Plaid Cymru has also criticised fees for being “far too high” but the position of both UKIP and the Green Party is still unknown. With no party setting out its policy in any detail, and with a wide variety of possible coalitions which could be formed come May, all that can be said is that the future remains very uncertain indeed.

So what is the best that we can hope for? As Richard Dunstan puts it, asking for the complete abolition of fees might be “chasing unicorns in La La Land” but we might realistically demand a significant reduction. The Citizens Advice Bureau has proposed the employment tribunal fees be aligned with those in the county court but this will be of limited benefit. It will help those who want to make small claims worth less than £5,000 but it will do little for most claimants. We can be rather more ambitious than that without straying into La La Land.

But this is supposed to be a practical blog, which provides advice as well as commentary. So what can you do about fees? Well, in the short term, there is the remission system. One rare piece of positive news is that the number of successful applications for remission is increasing. But in the longer term, the best practical advice that I can give is this. When the general election comes in the spring, read the manifestos of all the parties carefully and look to see what they say about employment tribunal fees. And then cast your vote accordingly. There is every possibility that 2015 could turn out to be a Happy New Year.