Employment Tribunal Fees – Early Indications

In the six months since the introduction of employment tribunal fees at the end of July 2013, unofficial figures suggest that the number of employment tribunal claims lodged in that period are down by approximately 50% compared to the level of claims being lodged in the pre-fee era.  This is good news for employers and it appears that one of the policy objectives of the fee structure has been met, at least in this initial period.  In particular, the number of lower value claims such as wages and holiday pay claims has dropped significantly.  This is not unsurprising since such claims can be pursued as Small Claims in the Sheriff Court for a much lower lodging fee than in the tribunal forum  (£71 in the Small Claims court as opposed to £160 in an employment tribunal).  In addition, a Sheriff Court claim has no hearing fee whereas a wages claim in the employment tribunal attracts a £230 hearing fee.

From an employee perspective, the recent outcome in the London High Court case (whereby an application for judicial review of the fee regime brought by the trade union, UNISON, was rejected) is disappointing.  This is good news for employers although it remains to be seen whether the current downward trend on cases lodged will continue.  There is also the prospect of a successful appeal by UNISON.  A similar case has been brought in Scotland – this action was sisted (frozen) pending the outcome in the trade union’s case.

An interesting point which flows from the UNISON decision relates to the possibility of successful claimants recovering any fees incurred from the employer if they win their tribunal case.  The High Court Judgment stated that “the Lord Chancellor agrees that a successful employee should expect to recover the fees they have incurred from the employer”.  Whilst this appears sound in principle, it is worthy of note that the tribunal rules of procedure do not make provision for the circumstances in which a claimant can seek to recover fees from the respondent or the factors which an Employment Judge can take into account when deciding whether to grant such an award of “expenses”.

The initial impact of the fee regime is relatively staggering but there still remains a degree of uncertainty as to the future for employment tribunals and a number of unanswered questions.

Jack Boyle
Solicitor – Employment Law

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