According to the Times this week, the government has asked the Law Commission to help design a lawful system for charging employment tribunal fees.
The previous fees scheme introduced in 2013 was found to be unlawful by the Supreme Court in 2017 on the basis that the fees:
- had no direct relation to the amount sought and therefore deterred claimants pursuing low value claims or claims for non-financial remedy (which is the majority of ET claims)
- prevented access to justice because a significant percentage of Claimants were deterred from starting or pursuing claims as they were unable to afford the fees;
- had an unjustified negative impact on the constitutional right of access to the courts; and
- imposed unjustified limitations on the ability to enforce employment rights deriving from EU law.
As we predicted at the time, proposing a new fee regime would always be an option for the government.
The government could reintroduce ET fees by act of Parliament, in which case it would not be open to challenge by the courts. However, the current government does appear to prefer to use secondary legislation instead.
In that case, the government would feel more confident in dealing with challenges to reintroduced ET fees based on the first three bullet points above if it was acting in line with Law Commission recommendations. Assuming the scheme is not introduced until 2021, the EU law point would no longer be relevant.
We will keep you updated with any developments.