The current position is that individuals can issue a claim in the Employment Tribunal without having to pay any fees.
Whilst individuals can pay for legal support to assist with their case, many opt to represent themselves, therefore not incurring any costs throughout the entire process.
Some unsuccessful parties may find themselves the subject of a costs order (meaning they have to pay the other parties legal costs), however these are still relatively rare in the Employment Tribunal and will only be awarded if a party acts vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting the proceedings or where they continue to pursue a claim or defence that has no reasonable prospects of success.
Employment Tribunal fees were first introduced back in 2013 by the ‘Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013’requiring claimants to pay separate fees to have their claims issued and for the hearing. The level of fee depended on the nature of the claim being pursued.
Following the introduction of fees, there was a significant drop in cases being pursued and in the 2017 UK Supreme Court case of R (on application of Unison) v Lord Chancellor (2017) UK SC 51 (26/07/2017) all fees were held to be unlawful and preventing access to justice. Fees were scrapped and the government even rolled out a refund scheme for all fees paid during the 4-year period they were required.
We are currently seeing cases take at least 12 to 18 months to progress from the early stages of claim up until the final hearing.
With all of the proposed changes to employment rights being explored by the Labour government including removing the two-year service requirement to pursue a claim for ordinary unfair dismissal and extending time limits for bringing claims from three months to six, any influx of claims will likely result in the already backlogged service being overwhelmed.
Whilst the 2017 judgment was highly critical of the level of fees being charged, it did not provide certainty that a more proportionate level of fee would not follow. In an effort to tackle this, workers may therefore find themselves having to pay a fee to issue a claim in the Employment Tribunal in future.
Given that one of the main considerations behind the 2017 decision was the disproportionate level of fees being applied, the tribunal may take into account a claimant’s ability to pay when considering the level of fee to apply. Even with this support however, bringing issue fees back for Employment Tribunals may result in workers being deterred from pursuing claims.
In conclusion, whilst there is no definitive plan to change the current position and reintroduce fees, we can expect that the introduction of the Employment Rights Bill will significantly impact the Tribunal service and in reaction to this we expect that changes will be made to support the service and ensure that parties are not subject to unreasonable delays. The result of which may include the introduction of a reasonable and proportionate fee.
Our team are able to assist with a range of enquiries and HR support. If you have concerns in respect of tribunal fees and would like any support, please contact us on 01983 897003.
Appointments are available by telephone or via video call, so no matter where you are in England or Wales we can assist you.
The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.
The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.
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