28 Feb 2017
On 29 July 2013, the Government introduced Employment Tribunal fees. The fees have since been met with controversy, with a reported 70% drop in Employment Tribunal claims since its introduction. Some have argued that the fees are discriminatory, and Unison have mounted a long running campaign in the High and Appellant courts to argue for their abolishment. Unison’s current appeal in the Supreme Court is due to be heard on 27 - 28 March 2017.
Prior to this appeal being heard, the Ministry of Justice (“MoJ”) has published the highly anticipated and long-awaited results of their recent review of the introduction of fees in Employment Tribunals.
While it accepts that there has been a more dramatic fall in Employment Tribunal claims than originally anticipated, they outline that, although they accept that individuals may be discouraged in bringing an Employment Tribunal claim due to the fees, there is no conclusive evidence that they are prevented from doing so because of them. With the substantial and continued drop in Employment Tribunal claims since the fees, the Government indicated that a large number of people are using the ACAS Conciliation service, which supports that parties are resolving their employment disputes by alternative means. Further, the Government assessed the number of individuals participating in the ACAS early conciliation process and compared this to the number who then go on to issue a claim at the Employment Tribunal.
The Government acknowledged that a group of approximately 3,000-8,000 individuals did not resolve their dispute with ACAS’ involvement, but then did not issue a claim because they could not afford the Employment Tribunal fees. However, the government disagrees that this was because the individuals genuinely could not afford to pay, and may have been due to an unwillingness to reduce other areas of non-essential spending.
A further reason given was the lack of awareness of the assistance available via the fee remission scheme, and the Lord Chancellor’s power to remit fees in exceptional circumstances. Therefore, in the review, a proposal is set out for increasing the access to the fee remission scheme via increasing the level of income at which an individual can receive fee remission. The income level to receive full fee remission is proposed to be generally comparable to what a single adult working full-time on the current National Living Wage earns - £7.20 per hour.
Therefore, the new gross monthly income threshold for a single person with no children would be £1,250. There would be equivalent increases in the income level for those with children and couples. However, this level will not rise in line with future increases to the National Living Wage. A consultation on these changes runs until 14 March 2017. The Government has also made the decision that from 31 January 2017, fees will not be charged to bring three types of claims where employees of an insolvent employer seek payments out of the National Insurance Fund (“NIF”), which are: A redundancy payment from the NIF under S.170 of the Employment Rights Act 1996 (“ERA”); complaints about the Secretary of State’s failure to make a payment out of the NIF under S.188 ERA; and complaints under S.28 of the Pension Schemes Act 1993. Claims are divided into ‘Type A’ and ‘Type B’, and the fees owed are based on which category an individual’s claim falls into. The fee for an Employment Tribunal claim is in two stages – the issue fee; payable when the individual submits the claim, and the hearing fee; which is payable before the Employment Tribunal hearing.
From the outset, it has been possible to apply for a full or partial remission essentially based on income and the disposable capital of the individual. We now await the Judgment from the Supreme Court in the Unison appeal and wait to ascertain if there are to be any further changes to the fee remission scheme and the fees themselves.
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