The Scottish Government announced last week in its Programme for Government (a precursor to the SNP manifesto for Holyrood in 2016) that it would abolish fees for Employment Tribunals, a radical move away from the UK Government’s policy on Employment Tribunals since it came to power in 2010. In this article we will look at the history of Employment Tribunal fees in the UK, the SNP’s commitment, and the potential impact of the SNP’s policy on Employment Tribunal fees.
Background of fees
In 2013 the UK Government implemented The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. This legislation allowed the Government to implement a fee system for the Employment Tribunal.
Since 29 July 2013 Claimants must pay a fee to an Employment Tribunal if they wish to bring a claim, although some Claimants may qualify for a ‘fee remission’ (which means that they may pay a reduced fee or no fee at all). For ‘Type B’ claims (typically involving claims of unfair dismissal and/or discrimination) a Claimant must pay fees of £1,200, comprised of:
- £250 to make a Tribunal claim; and
- £950 to bring their case to a full hearing
If the claim is successful then the Employment Tribunal will usually order that the Respondent repay the whole or part of the fee to the Claimant.
The trade union ‘Unison’ has attempted to challenge the Employment Tribunal fee regime in the courts but recently failed with an appeal to the Court of Appeal, although it has stated that it intends to appeal the decision to the Supreme Court.
Scottish Government – the SNP victory’s and commitment
The Scottish National Party recently won a crushing victory in Scottish constituencies in the 2015 General Election. This week it published its Programme for Government, a layout of the policies, actions and legislation it intends to implement in 2015-16. This sets out the main provisions of the Scotland Bill, which is currently being considered by the UK and Scottish Parliaments. One of the provisions of the Bill includes the “revolution of Tribunals in reserved areas – such as Employment Tribunals – in Scotland” and one of the policies that that will be implemented is the abolition of fees for Employment Tribunals.
Impact of fees
Since the introduction of Employment Tribunal fees, there has been a significant drop in the number of claims accepted by the Employment Tribunal. The Ministry of Justice quarterly figures for January to March 2014 show that there has been a decline of 81% in the number of claims being brought between Q4 of 2012-2013 and Q4 of 2013-2014. A further review of the figures shows that the number of Employment Tribunal claims has continued to fall since Q4 of 2013-14, well in excess of the Government’s projected decline in the number of claims.
Further, a report published by the Citizen’s Advice Bureau found that 82% of the survey participants who were experiencing problems at work would be deterred from bringing a claim by the current level of fees. Further, the report also found that only 29% of the survey participants knew that they could apply for a fee remission.
Although it is difficult to clearly separate correlation and causation with the drop in the number of Employment Tribunal claims since Q2 of 2013-14, Employment Tribunal fees have undoubtedly had some impact (and probably a significant impact) on the drop in the numbers of claims. Although there is currently uncertainty as to the exact impact of Employment Tribunal fees in the UK, the Scottish Government’s commitment to abolish fees will serve as an important testing ground to determine if (and what) impact Employment Tribunal fees are having on the number of claims being submitted. This should then (hopefully) allow for some data-driven cost-benefit analysis of fees and their impact in England and Wales.
Redmans Solicitors are litigators & employment solicitors in Chiswick