The government has issued a consultation paper on (re)introducing fees to the tribunal and appeal tribunal systems in England, Wales, and Scotland.
Briefly, it is proposing that claimants should pay a fee of £55 for lodging their complaint with a tribunal, irrespective of whether they are bringing it on their own or with others (in which case the cost can be shared). Having paid the fee, claimants do not have to pay again for a hearing.
However, if the claimant loses their case and wants to appeal the decision, they will have to pay another fee of £55 for each judgment, decision, direction, or order being appealed. For instance, if the notice of appeal includes appeals against two tribunal decisions, the total fee payable would be £110.
The rationale for the proposals is ostensibly to relieve some of the cost to the general taxpayer, to incentivise parties to settle their disputes early through ACAS and to ensure consistency with the fee system in other courts and tribunals.
However, the government also had to take on board the 2017 judgment of the Supreme Court in R (Unison) v The Lord Chancellor (ELR 535), which quashed the fee regime it had introduced in 2013. The court was very critical of the charges, holding that they were so high they effectively prevented access to justice and discriminated against women.
As affordability was a key issue highlighted by the judgment, the government has had to revise its Help with Fees remission scheme so that anyone who is single, with no children and has less than £4,250 in disposable capital and a gross monthly income of £1,420 or less would be eligible for full remission of their tribunal or appeal tribunal fee. Those with a gross monthly income of £1,420 or more up to and including £1,520 would be eligible for a partial fee remission.
There are also a small number of exemptions from the scheme, including claims to a payment from the National Insurance Fund in the event of an employer’s insolvency and certain redundancy payments.
The consultation closes on 25 March 2024.
Rachel Ellis of Thompsons Solicitors said: “This is a concerning development for access to justice for working people. While the fees proposed are currently quite modest, once the rubicon of fees has been crossed, there is no guarantee whatsoever that they won’t increase significantly in the future. While the fees may seem low to many, for those who have recently lost their job, are owed wages for work done or are on a low income, the proposed fee structure will make access to justice harder. The government, in introducing fees during a cost-of-living crisis, appear ambivalent as ever to the needs of normal people. Any change that makes it harder for claimants to enforce their workplace rights in the tribunal should be strenuously resisted”.
To read the document in full, click here.