There was ‘no evidence’ to suggest that workers had been prevented from bringing claims by the introduction of employment tribunal fees which were delivering about £9m a year, according to the Ministry of Justice.
Introducing a review of the 2013 introduction of fees, justice minister Sir Oliver Heald, asserted that most people ‘would agree that it is better for parties to try to resolve disputes without going to the tribunal’. ‘Equally, few would argue with the principle that those who use the employment tribunals should make some contribution to the costs of the service, where they can afford to do so.’
The government reckons that the MoJ’s three objectives had ‘broadly been met’. Firstly, the government was seeking to make the tribunals more self-financing and, the review noted, that fees were now contributing ‘around £9 million per annum in fees’. Secondly, the review reckoned that more people were now using Acas’s free conciliation service than were previously using voluntary conciliation and bringing claims to tribunals combined. The review reported ‘a sharp, significant and sustained fall’ in claims and ‘a significant increase’ in the number of people going to Acas for conciliation.
On its third objective (access to justice), the MoJ reckoned that conciliation was ‘effective in helping up to a little under half of the people who refer disputes to them (48%) avoid the need to go to the tribunals’ and, where it did not worked, ‘many (up to a further 34%) went on to issue proceedings’.
There was no doubt that fees had brought about ‘a dramatic change in the way that people now seek to resolve workplace disputes’, Heald said. ‘That is a positive outcome, and while it is clear that many people have chosen not to bring claims to the Employment Tribunals, there is nothing to suggest they have been prevented from doing so.’
The MoJ does propose increasing the threshold for fee remissions ‘broadly [to] the level of someone earning the National Living Wage’.
While there is clear evidence that tribunal fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so. We have concluded on this basis that the system of fees combined with the standard Help with Fees scheme, and underpinned by the exceptional power to remit fees, means that no one should be prevented from bringing a claim to the tribunal because they cannot afford to pay.
Ministry of Justice
The Law Society in its response to the review argued that employment tribunal fees were having ‘a chilling effect’ on workers.
‘The minister asserts there is ‘no evidence to suggest’ the fees are limiting access to justice – but the evidence in his own report suggests that tens of thousands of people are slipping through the cracks,’ commented president Robert Bourns. ‘The truth is employment tribunal fees have had a chilling effect on the number of people able or willing to bring a case against their employer. Particularly affected are claims in areas such as sexual discrimination and equal pay – and the reduction in tribunal cases is not offset by the increase in people using ACAS’ early conciliation service. Solicitors working in this area also report that the reduced number of claims has altered the behaviour of employers and we will address this concern in our consultation response.’
‘No matter who you are, everyone in England and Wales must be able to access the justice system. It is a public good which should not be used to generate revenue. If these fundamental principles are not followed, we risk squandering years of progress and damaging the reputation of England and Wales as one of the fairest justice systems in the world.’
Robert Bourn, Law Society
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