Are tribunal fees preventing access to justice?

The Ministry of Justice reported earlier this month that in the three months ending 30 June, HM Courts and Tribunals Service (“HMCTS”) received 74,400 claims, 71% lower than in the same period last year and the lowest since current statistics began in 2008. The number of cases (or claims) disposed of fell by 35% to 140,800.

The Ministry of Justice attributes the fall to reductions in social security/child support appeals and employment claims.

Fees for employment tribunals were introduced at the end of July 2013. Details of these fees are contained in The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 but very briefly, the main fees payable are as follows:

Type A claims (e.g. Wages Act/refusal to allow time off/appeals)
Issue fee – £160; Hearing fee – £230

Type B claims (e.g. discrimination/detriment/dismissal)
Issue fee – £230; Hearing fee – £950

The latest figures show a third successive fall in the number of claims to the employment tribunal since the fees came into force.

The statistics have prompted calls for the government to review the level of fees payable in tribunal cases. The TUC general secretary, Frances O’Grady is quoted as saying “tribunal fees are pricing workers out of justice and have created a barrier to basic rights at work. Meanwhile, the shadow business secretary, Chuka Umunna is quoted as saying that a future Labour government would “ensure that affordability is not a barrier to employees seeking redress I the workplace”.

It has been suggested that fees would be unnecessary if the tribunal was more willing to exercise its discretion to make costs orders in cases without merit (where the losing party is ordered to pay the winning party’s legal fees). This would potentially improve access to justice by deterring bogus claims whilst at the same time giving comfort to genuine claimants and employers that their legal costs may be recoverable

Dermott Thomas is a Partner at Barker Gotelee, Solicitors in Ipswich.