Government may reintroduce tribunal fees

In light of the Government's recent discussions regarding the re-introduction of employment tribunal fees, Fudia Smartt, Employment Law partner at Spencer West LLP, has expressed her apprehensions. She noted, “The Labour Government’s suggestion of introducing legal fees into the employment tribunal regime is giving me a severe case of déjà vu.” Smartt highlighted the previous introduction of fees by the Conservative government in 2013, which aimed to address concerns over frivolous claims and improve efficiency within the tribunal system. However, the consequences were immediate and detrimental, with a 53% decrease in case volume within a year and a significant 79% drop in overall claims, particularly affecting women and low-paid workers.

The Supreme Court's 2017 ruling that determined the fees were unlawful underscored the chilling effect they had on individuals seeking justice. Smartt observed that the removal of fees led to a rapid increase in claims, demonstrating the overwhelming demand for access to the tribunal system. With staff numbers and available judges reduced during the fees regime, the system has since struggled to cope, compounded by the challenges posed during the Covid pandemic with virtual hearings. Consequently, cases face significant delays, prompting Smartt to advocate for a tribunal system overhaul: “I cannot deny that the tribunal system is in need of an overhaul.”

However, she firmly opposes reintroducing a fee at the point of issuing claims, regardless of its size. She argued that even modest fees would deter the lowest-paid workers from enforcing their rights, especially in today's uncertain economic climate. Smartt commented, “What is the point in making unfair dismissal a day one right, if low paid workers feel unable to exercise such a right?” Instead, she suggested that policymakers should consider imposing penalties for unreasonable litigation conduct. In her view, repeating past mistakes regarding tribunal fees is neither sensible nor appropriate for fostering a fair employment rights landscape.