“The death of employment tribunal fees has been greatly exaggerated”.
For those of you with a keen (or any) eye for detail, you will note that the above quote isn’t the famous line uttered by American humourist Mark Twain, more one that I have been relaying to clients over the past few years. For the hundreds of you who attend our annual CIPD event (click here for the link to our event in October 2019) you will recall that I haven’t stopped mentioning my belief that ET fees will soon be returning. Well I will once again put my neck on the line and confirm my belief that ET fees will be returning soon… maybe.
As a quick bit of background, up until 2013 it was free for individuals to seek recourse in the employment tribunal for any perceived wrongs they believed had been caused by their employer. In what was seen by many as an income generating scheme, the government decided in July 2013 that individuals should pay the tribunal services up to £1,200 to have their case heard at tribunal, a move which was welcomed by employers. The joy of employers was well-founded as the following months saw a 75% drop in tribunal claims from employees, a move which led to a legal challenge by the trade union, Unison, against the fees.
After going through the court process, in July 2017, Unison were finally successful with an appeal to the Supreme Court who found that the government had unlawfully implemented the particular fee regime. As a result, the government announced that the fee regime would be scrapped immediately and arrangements would be made to refund those who had been affected. Importantly, however, the Supreme Court judgment gave a glimmer of hope to the government as it did not rule out the possibility that an alternative fee regime may indeed be lawful.
So where are we now?
We are now over two years from the Supreme Court judgment and, in public at least, the government have so far failed to confirm any solid plans to reintroduce a fee structure to the employment tribunals. Rumour has it that currently something called Brexit is keeping them occupied elsewhere. In the meantime, claims against employers have returned to around the heights they were in years leading up to the introduction of fees in 2013.
I have, however, now had it confirmed from two sources that a draft bill has been produced which the current government think is lawful and one which they will look to introduce to the House of Commons when the time is right. Any such bill will likely come under enormous scrutiny from both the House of Commons and the House of Lords before it is made law. It is expected that Unison, fresh of the back of their victory in the Supreme Court in 2017 will once again launch a legal challenge to the introduction of any fee structure.
So will any new fee regime actually become law?
Possibly. The Conservative party are the only political party who openly support tribunal fees. Should they lose at a general election (if one happens at all), it is unlikely that either the Liberal Democrats or Labour would introduce any bill to reintroduce the fees. The second reason is the unions. Even if Labour considered the reintroduction of fees a good idea to protect employers from vexatious claims, it is likely the unions would lean very heavily on them to scrap such an idea. Now, more than ever, Labour need the unions on their side and it is unlikely that they will do anything to upset them at this stage.
If fees are reintroduced, when will it be?
This is purely dependent on where we get to with Brexit. Once the government have enough time to consider any other changes to legislation, it is still likely to take months for any new fee regime to get through and attain the approval of both Houses. In 2017 I said that I expected something in place in early 2019. Back then I didn’t appreciate the mess that the Brexit negotiations had in store. The answer is quite frankly that I simply don’t know. However, at this stage I would now not expect to see anything before the summer of 2020 at the earliest, if, and it’s a big if, the Conservatives stay in power.
Figures released in June 2019 confirmed that approximately £16m in employment tribunal fees still had to be reclaimed by individuals and businesses as a result of the Supreme Court ruling in July 2017. If you are one of the approximately 30,000 individuals or businesses who have paid tribunal fees at any point between 2013 and 2017 and not reclaimed the same, it is worthwhile making enquiries for a refund.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.