Open letter on Employment Tribunal Fees

The Employment Law Bar Association has written an open letter to Chris Grayling MP, Jo Swinson MP, Shailish Vara MP, Chuka Umunna MP expressing our concerns about the impact of fees on access to justice in the employment tribunals and calling for an urgent review.

A shorter, edited version of the letter follows. You can also download the full letter, including the signatories.

We are members of the Employment Law Bar Association, a group of barristers practising employment law and acting for all parties.

We write to raise our significant concerns about the fee system operating in Employment Tribunals.

Since July 2013 individuals pursuing a claim in the Employment Tribunal have had, for the first time, to pay a fee. The fees can be remitted, provided the individual can satisfy both a disposable capital test and an income test.

The introduction of fees has resulted in a drastic reduction in the number of claims. The government’s own statistics (released last Thursday) show that the average number of claims per quarter in 2012/2013 (before the introduction of fees) was 48,000; in the last quarter of 2014, there were 18,943, that is 60% fewer claims. 

In our view the present Employment Tribunal fees are a significant barrier to access to justice, and are preventing employees from being able to complain about contraventions of their employment rights.

We do not think that the current level of fees can be justified by the suggestion that prior to July 2013 a significant percentage of Employment Tribunal claims were vexatious claims.

We are not aware of any objective evidence that supports the view that a significant proportion of the claims brought in the Employment Tribunal prior to July 2013 were vexatious. Indeed, the statistics kept by the Ministry of Justice show that of the claims that proceeded to a hearing in 2012/3, more claims were successful than unsuccessful.

Moreover, there is no evidence that the introduction of fees has had the effect of weeding out vexatious claims, whilst allowing claims of merit to continue. For example, in 2012-2013, before the introduction of fees, 36% of claimants whose claims for unfair dismissal were decided at a hearing succeeded; in the first half of 2014-15, well after the introduction of fees, it was 40%. The introduction of fees has had no discernible impact on the outcome of cases. This must mean that meritorious claims are not being pursued because of the fees regime.

The present government stated as long ago as 2 April 2014 that it intends to review the introduction of Employment Tribunal fees, and in particular intends to review the level at which those fees have been set. However, no date has as yet been set for that review to take place.

We call upon the government to undertake that review urgently. We call upon the other parties to commit to such a review in the event of their participation in government after the general election.