Will Employment Tribunal fees return before Christmas?

On 29th January 2024, the Ministry of Justice (MoJ) launched a consultation on re-introducing fees for employment tribunal claims and appeals to the EAT.

What happened last time?

Employment Tribunal (ET) fees were introduced in July 2013.  Type A claims (simpler disputes such as unpaid holiday pay) attracted a total cost of £390, and Type B claims (more complex disputes such as discrimination) totalled £1,200. The total cost of an appeal to the Employment Appeal Tribunal (EAT) was £1,600. Fee remission was complicated.

Cases fell by 53% in the 12 months after fees were introduced. The Supreme Court held the fees were unlawful. They were unaffordable and indirectly discriminatory against women and individuals with protected characteristics who were more likely to have Type B claims.  The government abandoned the scheme.

What would be different?

The consultation proposes a £55 issue fee for all employment tribunal claims, except claims for payment from the National Insurance Fund (usually where the employer is insolvent), which would be exempt. The fee would remain at £55 regardless of the number of complaints raised in the claim or the number of claimants on the claim form. Unlike the 2013 fees scheme, no separate hearing fee is proposed; the £55 issue fee would cover the entire claim journey. For appeals to the EAT, it is proposed that the appellant should pay a fee of £55 for each judgment, decision, direction or order being appealed.

Claimants whose income and savings fall below certain thresholds could apply for fee remission.

How likely is it?

It will depend on when we have the next general election and who wins it.  In January, Prime Minister Rishi Sunak said he expected to call the election ‘in the second half of 2024’.  If the Conservatives remain in power, they will likely re-introduce fees this year.   However, fees may return before the election and if Labour returns to power, reversing the new regime may not be a priority.

Source: MoJ: Introducing Fees in the Employment Tribunals and the Employment Appeal Tribunal (29 January 2024).