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What’s next for employment tribunal fees?

Wednesday’s Court of Appeal decision will be a welcomed relief for many employers. The number of claims being brought in the employment tribunals is expected to remain at the low levels we currently see following Unison’s unsuccessful challenge to the fee regime.

Since the introduction of fees, the tribunal statistics have continued to show a steep decline in the number of claims being presented. The most recent statistics show the number of claims presented in April 2014 to March 2015 was less than a third of the number of those brought in the same period before the introduction of fees.

Unison argued that the tribunal fees had led to the decline in cases. The Court of Appeal recognised that the introduction of fees has had the effect of deterring a very large number of potential claimants. However, one of the key legal issues to be determined was whether fees made bringing a claim not just unattractive but impossible to pursue. The Court of Appeal found that the evidence simply didn’t support this.

Notably, however, the judgment refers to the government’s post-implementation review currently being carried out. The review commenced in June 2015 and the purpose is to assess the effectiveness of the fees in meeting the original objectives. The original objectives included transferring some of the cost of the tribunal system from the tax payer to the user and increasing efficiency. However, those objectives must be weighed against the need to maintain access to justice. The Court of Appeal made clear that the decline in cases is “sufficiently startling” to warrant closer analysis of the basis for this. The review is expected to be concluded later this year and any recommendations for reform arising from the findings will be the subject of consultation.

In light of the unsuccessful legal challenge, it seems highly unlikely that whole-scale reform of the regime will be implemented following the review, although there still remains scope for a further appeal from Unison and for individual claimants to pursue a challenge based on their inability to access justice.

The introduction of fees has arguably led to a change in the way employers manage employment issues, with many employers adopting a far more robust approach. As was highlighted in the Unison case, there is similarly less incentive for employers to consider settling cases where the employee is unlikely to litigate due to the fees involved.

It still remains important, however, to follow the correct procedures and we would encourage you to seek advice as soon as possible to ensure you fully understand your position and to minimise the risks facing your business.

For all employment queries including the recent employment tribunal fees announcement contact Eleanor Wilkinson.

Your can find out more about the Square One Law employment team here.

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