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Are Employment Tribunal fees preventing access to justice?

At a meeting to discuss Brexit, news of the long awaited review of the tribunal fee structure was highlighted in Parliament by the national press; talk of falling tribunal cases and evidence that low paid and vulnerable workers are failing to access justice has understandably has sparked concern for Parliament and the Unions. But is it all as bad as the press have implied? Do the Tribunal fees actually prevent the vulnerable from seeking the justice they need in an Employment Tribunal?

The Employment Tribunal has long been a forum where employees can air their grievances against their employer in an open forum. However in 2013, amid a failing economy the previous government noticed that the Employment Tribunal was costing them some £80 million each year. So, along with other government departments, cuts needed to be made. Unlike the other departments, rather than reduce the service it was decided that claimants (those employees and workers who needed to bring a claim) should contribute to the cost of the service as is the case in other civil courts. In addition, it was hoped that this move would also reduce the number of disingenuous and weak claims filed, leaving only those where access to justice was necessary.

Since the introduction of these fees (which for the average unfair dismissal case are £250 to file the case and a further £950 payable to have the final hearing), tribunal numbers did decline, but once the system settled down and employees became more aware of their options to access schemes like legal expense insurance, fee remission (this is where fees are either waived in their entirety or part paid) and the mandatory introduction of pre-claim early conciliation via ACAS, numbers to the tribunal and those seeking assistance though ACAS have steadily began to rise.

Early conciliation is a mandatory process that all claimants to an Employment Tribunal have to go through and is administered by the conciliation service ACAS. It allows an employee the ability to test the waters, free of charge, particularly on how the employer would respond to the claim if they were to pay the fee and file the claim.

Whilst there was a 78% slump in tribunal numbers at the end of the 2015-16 tax year, 92,172 cases were referred to early conciliation. 15,420 of these settled before the employee had to pay a single penny in fees. 

The remaining cases either did not progress or went on to be filed in the Employment Tribunal anyway however, unlike before, the employee was fully aware of the employer's standpoint before they progressed.

Whilst affordability may be an issue for claimants, it is possible that the reality is simply that claimants are simply unwilling to take the gamble that they will not get their fees back if they lose the claim.

The recent review published this week by the Ministry of Justice, takes account of the drop in numbers and the fact that affordability may be a factor for the some 59,295 cases that don't progress to a tribunal however they assert that there is no conclusive evidence that people are prevented from doing so.

In fact the review notes that those in vulnerable groups, such as working mothers and those on low incomes are more likely to qualify for fee remission. Fee remission is a government scheme which allows employees on low incomes, those with children and those in receipt of state benefits (such as income based job seekers allowance and income support) the ability to take a case to a tribunal without paying a fee or paying only a proportion of it).

None the less the review has recommended that the current process of fee remission should be extended to more people by raising the income level at which claimants can receive it.

The consultation is likely to run until the 14th March 2017, but until then the Government has also decided that it is not appropriate to charge fees in three types of proceedings in particular where employees of an insolvent employer seek payments out of the National Insurance Fund (i.e. for payments of redundancy pay) and this is effective immediately.

On the whole, whilst numbers in tribunals have fallen there are ways and means for employees and in particular those in vulnerable groups (such as working mothers) to achieve some form of access to justice.

If you are experiencing problems at work or are worried you cannot access the tribunal please call us on 01254 872 272 and ask to speak to one of our specialised employment solicitors where we can discuss your options with you.

Alternatively if your business has received a call from ACAS in respect to Early Conciliation, we can assist in the negotiation process allowing you to focus on your business and what you do best.

Posted in: Employment law

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