The debate and discussion concerning employment tribunal fees and the remission scheme associated with it continues, with more light being generated than heat, more than two years following the introduction of the scheme. The President and Regional Employment Judges of England and Wales have presented a thorough submission to the Justice Committee. This follows the committee’s decision to call for evidence on tribunal fees and access to justice, taking – some might say – a sideswipe at the Government’s decision to review fees. Readers will recall that a review of tribunal fees was promised at the time of their introduction in July 2013. Despite the dramatic change in the number of claims being submitted and the various legal challenges that were made (most notably UNISON’s), the Government sat on its hands, unable to say when the promised review would take place. When the review was announced before the summer, many felt that to call it a review may be stretching the word beyond its elasticity. No submissions were asked for outside Government and no evidence would be considered other than that which the Government selected itself. Perhaps ‘taking a look’ would be more accurate.

Nevertheless, with the Justice Committee opening its own review and seeking submissions and being prepared to consider evidence that it had not selected itself, the employment judges stepped forward. In fact, they stepped rather more boldly than their brethren in the High Court and Court of Appeal felt able to do when considering UNISON’s judicial review application and subsequent appeals. Rightly, the judges state that it is not a matter for them to comment on the policy behind fees. The Government has consistently stated that the policy was not one designed to reduce the number of claims by pricing access to justice at a level that would deter claimants. The policy was to transfer the cost of the tribunal system from taxpayers (principally employers and employees) to the users of the tribunal system (principally employers and employees). This has not been entirely successful. For the year 2014-15 the cost of the tribunal system was around £60m, with the contribution from fees being £4.3m (around 7%). These costs do not take into account the set-up costs of the fees system.

The employment judges are unconvinced that fees have encouraged people to resolve their disputes by alternative means. Early conciliation is put forward as an alternative explanation, albeit with the concern raised that six out of 10 people that entered early conciliation neither settled their claim through Acas nor went on to present a claim to the tribunal. They go on to consider what has happened to claims. Short track claims – for unpaid wages, notice pay and so on – usually for modest amounts in the hundreds rather than the thousands, have all but disappeared. As stated, ‘a combined fee of £390 represents a considerable investment in proportion to what might be a relatively modest sum at stake’.

What survives now tend to be the more complex and difficult claims: public interest disclosure and whistleblowing; or the claims brought by those who ‘litigate their claims regardless of the level of fee or risk of costs imposed upon them for doing so’. The judges make sensible suggestions for reform: introducing a third ‘type’ of claim for fee purposes, essentially a cut-price scheme for dealing with low value claims; more fairly distribute the burden of fees between claimants and respondents, with the latter paying a fee when it submits a response and at least contributing towards a hearing fees; and reform of the remission scheme.

It would be a shame for the debate to end up as a ‘right v left’, ‘employer v employee’ bore-athon. The issues of access to justice and fairness in the legal system are too important for that. The employment judges have provided a good set of signposts to where we should look next.

Alex Lock, DAC Beachcroft LLP