In this article, GMLC employment campaign volunteer lead Avaia Nightingale Williams discusses the recent proposal to reintroduce fees in the Employment Tribunal and analyses how this will clash with a previous ruling of the Supreme Court.
The recent announcement that the government plans to consult on reintroducing fees for Employment Tribunals (ET) and Employment Appeal Tribunal (EAT) has already sparked a significant debate. This consultation raises crucial questions about access to justice, workers’ rights, equality, and the potential circumvention of legal precedent.
Background
In 2013, the Government introduced the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, which mandated a charge of between £390 and £1600 for those seeking to bring a claim in the Employment Tribunal (ET) or Employment Appeals Tribunal. This would be the cost solely to issue the application and attend a hearing. In 2017, this fee was declared unlawful by the Supreme Court in the landmark decision of Unison v Lord Chancellor [2017] UKSC 51. The Supreme Court cited the deterrent effect on access to justice, particularly for workers with modest claims, noting:
“…it is not only where fees are unaffordable that they can prevent access to justice. They can equally have that effect if they render it futile or irrational to bring a claim. As explained earlier, many claims which can be brought in ETs do not seek any financial award: for example, claims to enforce the right to regular work breaks or to written particulars of employment. Many claims which do seek a financial award are for modest amounts…”
The judgment was hailed as a victory for workers’ rights and an affirmation of the principle that justice should not be a luxury reserved for the wealthy. Given that the Fees Order had resulted in a drop in claims of over 65%, the judgment was one of the most significant in the realm of access to justice in recent years.
“New” Proposal
Despite this unequivocal ruling, the government now proposes reintroducing a “modest” fee of £55 for both ET and EAT claims and appeals. While this amount is superficially low, especially when compared to the previous fees, it still represents a significant amount for those most likely to access the Tribunals.
Even a small fee can be a barrier. For many workers, particularly those in low-wage jobs or facing financial difficulties following dismissal, any additional cost can deter them from seeking justice, especially given the increased pressures on countless households currently. This is especially pertinent for claims that involve smaller sums or non-monetary issues, where the cost of the fee can outweigh the potential benefits of winning the case. The Supreme Court in Unison explicitly addressed this issue, noting that access to justice should not be impeded by fees that render it irrational to pursue legitimate but small or non-monetary claims.
The government argues that the new fee structure is different from the previous one invalidated by the Supreme Court. By keeping the fees uniform across different claim types and offering a more generous remission scheme, they believe it addresses the earlier concerns of affordability and discrimination. It also appears that, the lower fee itself is believed to be such an amount as to be less impactful on the majority of applicants to the Tribunals. The Government has noted that:
“The current proposal to introduce modest fees in ETs and the EAT aims to relieve some of the cost to the general taxpayer by requiring tribunal users to pay for the tribunal system.”
But the crux of the policy behind the proposals are that other courts charge money to be accessed and only a small percentage of the country utilise the tribunals, but everybody funds them via tax.
This perspective overlooks the broader implications of fee impositions on access to justice.
Clashing with the Supreme Court
The Unison case emphasised that the imposition of fees must not make bringing a claim fiscally irrational or unaffordable. The new proposal, though less burdensome in fee amount, does not eliminate these concerns. It risks creating a financial barrier, however small it might seem at first glance, that could discourage legitimate claims, particularly from vulnerable or low-income workers.
An argument raised by the Government in the Unison case was that there was a remissions scheme in place, the idea being that those who could not afford to pay were not prevented from bringing a claim. But, in practice, this remission scheme was so exclusionary that even those on minimum wage struggled to be eligible. It is therefore hard to envisage a remission scheme that would be significant enough to overcome the hurdle clearly set by the Supreme Court: that, “in order for the fees to be lawful, they have to be set at a level that everyone can afford”. Responding to the consultation, current General Secretary of UNISON, Christina McAnea said:
“When UNISON forced the fees to be scrapped in 2017, the UK Supreme Court said the government had acted unlawfully and unconstitutionally. Nothing has changed. Tribunal fees were unfair then and they are still unfair today.”
The Unison judgment was not merely about the level of fees but also about the principle that employment rights are hollow if they cannot be practically enforced. Rights such as the right not to be sexually harassed, to be able to take time off when having a mental health crisis, the right to equal pay and gender equality, rights to annual leave, the right not to be dismissed because of race, religion or ethnicity go to the very ethos of freedoms. Reintroducing fees, even at a lower rate, are a step back from this principle. As Paul Nowak, General Secretary of the Trades Union Congress, has said:
“Now, the government wants to make it even harder for working people to seek justice if they face discrimination, unfair dismissal or withheld wages […] All working people should be able to enforce their rights. But introducing fees for tribunals puts yet another hurdle in the way of those seeking justice at their most vulnerable moment […] Working people shouldn’t be picking up the bill for exploitative employers’ poor behaviour.”
The final point to note is that fees rarely stay the same once they have been introduced. The pattern is for them to gradually creep upwards, becoming more exclusionary as time goes on. In this consultation, the public has a chance to reject the idea of court fees before they can begin to climb and prove more of a deterrent to employees accessing justice.
Conclusion
The government’s proposal, while seemingly modest, does not align with the spirit of access to justice and is certainly not in line with the spirit of the Unison judgment. We encourage all voices who may have a valuable perspective – including trade union reps or members, litigants in person, legal professionals and organisations promoting workers’ rights – to contribute to the consultation and say ‘no’ to any level of Tribunal fees.
You can fill the consultation in online here: https://consult.justice.gov.uk/digital-communications/introducing-fees-employment-tribunals-eat/consultation/intro/
We will publish our suggested answers to the consultation before its closing date on 25 March 2024 if you would like a template to work from.
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Avaia is an unregistered barrister and was formerly a Trade Union Representative at Citizens Advice Manchester as well as a national delegate for Unite the Union. If you are interested in working with GMLC on protecting and strengthening employment rights, either as a campaigner, practitioner or on an organisational level, you can email us at development@gmlaw.org.uk.
Photo credit: ‘Employment Appeal Tribunal’, morebyless, Flickr, 2010.
