HM Insights

Employment tribunal fees: English judges give written views on review

What’s it all about?

In September we published a blog, What’s next for employment tribunals in Scotland?, in which we touched upon a discussion document from the Law Society of England and Wales proposing changes to the employment tribunal system south of the Border.

Law Off Balance

Now, written evidence for the review has been submitted by the President and Regional Employment Judges of the Employment Tribunals in England and Wales. This followed the recent decision of the Ministry of Justice to conduct a review of the employment tribunal’s fee regime.

Although this review is not directly affecting the Scottish tribunal system, these comments – given that they are made by the tribunal judges themselves – make interesting reading and may be indicative of potential considerations for change in Scotland.

The Written Evidence from the Employment Tribunals (England and Wales)

The evidence paper was submitted in relation to recognised issues of how the introduction of fees has affected those using the system. In particular, concerns over how access to justice and both the quality and volume of cases being brought before tribunals is noted. The failure to meet the original objectives of transferring a proportion of the running costs of the tribunal is attributed to factors including the decline in cases and the fee/remission process itself, due to the additional time taken to deal with these.

Some of the statements made reflect general concerns which have also been highlighted in Scotland, which include:

• No obvious reduction in weak or unmeritorious claims
• a lack of improvement in the use of judicial mediation
• adverse effects concerning access to justice

Recommendations from the Judges

The theme behind the recommendations looks to be targeted at “streamlining procedures to reduce costs”, assuming that a fees system continues.

As with the proposed changes for Scotland a key consideration is to encourage early conciliation and other forms of alternative dispute resolution within the tribunal system.

In terms of structure it is proposed that a three-tier system of case classification be put in place distinguishing between types of case, not the existing two-tier system. Specific fee levels are not set out but it is recommended that there be differences between the tiers. An interesting proposition is to introduce discounts when correspondence is dealt with online. In addition, further discounts are recommended when hearings are conducted online or without a hearing in person in cases where this may be appropriate. It does seem that claims that will be appropriate for these types of hearing are likely to be very limited in scope.

The paper also contains a recommendation to mirror the civil litigation model in Scotland (in terms of respondents having to pay response and hearing fees). This recommendation is made with an aim of promoting early settlement primarily. It also appears to be aimed at aiding recovery of costs because both parties would have a stake in the dispute being resolved if ACAS early conciliation has been unsuccessful. This is, of course, a far remove from the current system in which respondents do not have to bear such costs and may be viewed by employers as an undesirable potential amendment to the rules.

Moving forward

Under these recommendations the fees regime would not be abolished. Rather, it would be amended in an attempt to improve on key considerations such as access to justice and efficiency within the employment tribunals in England and Wales. It should be borne in mind that these recommendations come from the Employment Tribunals and it is not certain that they will be acted upon by the Ministry of Justice when conducting the review.

Whether the recommendations made will lead to any changes to the fees regime in England and Wales remains to be seen. It seems clear that changes are likely to happen in Scotland and, if any do happen in England, then they may differ from the changes proposed for Scotland. We will continue to offer updates on any progress concerning these changes and aim to comment on the potential impacts which they might have for parties involved in the employment tribunals.

Get in touch

If you would like advice on any aspect of the issues raised, how these potential changes might affect you, or how the current system operates, please contact a member of our employment team or find out more on our employment law page.