Prior to the introduction of employment tribunal fees the Government stated that its intentions were not to see a reduction in the number of cases brought before employment tribunals, but rather to shift the financial burden from the tax payer’s pocket to those individuals actually using the tribunal service.
At first blush this idea seems entirely logical and unlikely to stir argument; however a little over a year on and we have seen the number of cases brought before employment tribunals plummet by 79%, according to the latest figures from the Ministry of Justice. The extent of the drop has caused many commentators to ask: has the introduction of fees placed a price on justice within the workplace?
Before the implementation of tribunal fees the claimant did not have to incur any costs to pursue a claim. While legal representation is common, it is not and was not a prerequisite for raising a claim. Justice Minister Jonathan Djanogly reported that the annual cost to the taxpayer ran to the tune of a staggering £84M, a cost which he felt should not be sustained by the taxpayer alone but rather by the individuals using the system. The Government argued that the introduction of fees would encourage the use of mediation, preserve employer/employee relationships and avoid potential financial damage for businesses. It was also suggested that the fees would deter vexatious claims from getting through the doors of a tribunal and clogging up a system which was already bursting at the seams.
On the other side of the debate, many stakeholders were vehemently against fees. Unison brought a case before the High Court attempting to stop the implementation of fees altogether, arguing that fees contravened a number of EU law directives and human rights legislation. When that challenge failed, Unison asked the court to overturn the fee regime a few months later. The High Court dismissed the case on the grounds that there was not enough data showing a drop in cases to throw out the fee regime. Nonetheless, preliminary statistics showed that the decline had begun so the court hinted that this ruling would be reviewed should any future figures bear out the prediction that the number of cases would plummet.
Skip forward almost a year, and we now have the data that Unison lacked for their challenge. It will be interesting to see whether this is sufficient to warrant a further judicial review of the fee regime. Certainly most users of the system expect that there will be more litigation and challenges to the regime in the future. In Scotland, the independence referendum could throw up another avenue for change in the event of a “yes” vote. Given the SNP’s social policy agenda, it is unlikely that an independent Scotland would retain the current fee regime.
Whatever the future holds, over the past year Claimants have certainly felt the bite of tribunal fees. There will inevitably be those who will argue that the fall in the number of cases being brought before employment tribunals is essentially the product of what Jonathan Djanogly intended to achieve from the outset: to weed out frivolous claims which have little to no chance of success at tribunal. In reality, however, those who present this argument would be hard pressed to persuade a court that all of the cases constituting the 79% drop were meritless.