It has now been three years since the introduction of Employment
Tribunal fees (ET Fees). There is an ongoing challenge to ET Fees
by the union Unison, which is taking its judicial review case to
the Supreme Court. The publication of the government's
post-implementation review of the ET Fees, which was due by the end
of 2015, is still awaited. We suspect that this will be very low on
the government's current agenda, and that we can expect to
continue to wait for some time for this (if in fact it ever
There has been some formal review of ET Fees in the meantime. On
20 June 2016, the Justice Committee published a report titled
"Courts and Tribunals fees" (the Report) to assess the
impact of Tribunal fees (as well as changes to the Court fees
regime) on access to justice.
The Report identifies that the impact of ET Fees has had a
dramatic effect, with a 70 per cent decrease in the number of
claims being issued since their introduction. It considers that, in
light of this, the introduction of ET Fees has "had a
significant adverse effect on access to justice for meritorious
The Report is critical of the government's failure to
publish its review. It also criticises the government's
position that the drop in Employment Tribunal claims has been due
to the introduction of ACAS Early Conciliation (which came in at
around the same time) as "even on the most favourable
The Report concludes that a contribution by claimants to funding
their claim through the Tribunal (and Court) system is not a
problem in principle, but suggests that the level of fees should
generally be lower and should also be more proportionate to the
complexity of the case presented. The Report also suggests an
increase in the financial threshold for fee remission and special
consideration for women alleging maternity or pregnancy
It is clear that the introduction of ET Fees has had a
significant impact on the numbers of Employment Tribunal claims
being brought. The number of frivolous claims that we have seen
since the introduction of fees has all but disappeared. This is
obviously welcome news for employers. However, it simply must be
the case that there are some meritorious claims which are not
brought because of the fee regime. It is clear that whilst ET Fees
do serve a useful and valid purpose, they also limit access to
justice. Clearly a finer balancing exercise needs to take place,
and changes may need to be made to the fee regime along the lines
that the Report suggests. It will be interesting to see what
comment the Supreme Court makes (the hearing is due to take place
on 7 and 8 December 2016). However, unless it is given a pressing
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