This is one of the conclusions reached by the House of Commons Justice Committee ("Justice Committee") in its recent report. The Justice Committee was tasked with assessing what impact the introduction of tribunal fees has had on access to justice and it certainly was not shy with its findings. One of the Justice Committee's scathing criticisms related to the Government's failure to publish its post-implementation review of tribunal fees. The review had not been published (and at the time of writing, has still not been published) a year after it began and six months after the Government said it would be completed. Undeterred, the Justice Committee has published its own report despite describing the Government's failure to produce its review as being detrimental to its work.
Readers will be aware that following the introduction of employment tribunal fees in 2013, prospective claimants have been required to pay an "issue" and "hearing" fee in order to pursue their claim. It is these fees which the Justice Committee attributes to a 70% decline in the number of cases being brought since 2013.
The report also highlights that tribunal fees have had a negative impact on early conciliation between parties with employers having little incentive to settle in circumstances where the Claimant may struggle to pay the fees. This finding is likely to cause further embarrassment for the Government which asserted that the drop in the number of tribunal claims is largely attributable to the success of Acas early conciliation. The report found this assertion "on the most favorable construction, superficial."
In contrast to the Government’s aim of introducing the fee regime in the first place, the Justice Committee’s report found that the fees have had no real impact on the number of unmeritorious claims being brought to the tribunal, instead finding the opposite – that access to justice for those who need it has been compromised.
The Justice Committee’s Report had perhaps one core message; that if there were to be a choice between less income from fees and preservation of access to justice, the latter must prevail. Although the Committee was unable to say definitively whether such changes would improve access to justice, it strongly recommended the following:
- a substantial reduction in the level of fees charged for bringing cases to tribunal;
- replacing the type A or B distinction (categories of claim) with either a single fee; a three-tier fee structure; or a fee proportionate to the amount claimed and a zero fee if the amount claimed is under a certain threshold;
- an increase in fee remission thresholds; and
- special consideration for women claiming maternity or pregnancy discrimination, with at least, an extension of the usual three month time limit in which to bring a claim.
The Justice Committee's timing in releasing the report could have been better. It was published three days before Brexit was announced and has been somewhat overshadowed by Brexit ever since but it is likely that the Justice Committee's findings will be brought to the fore again in December of this year. This is when Unison's application for judicial review of employment tribunal fees will be heard by the Supreme Court.