The eagerly anticipated outcome of the Ministry of Justice’s (MOJ) review into the introduction of Employment Tribunal fees has been published. It’s finding that there is “no conclusive evidence that individuals are prevented from pursuing claims” is likely to be controversial. The MOJ does however concede that individuals may be “discouraged” as a result of the fees.
In reality however, following the introduction of the fees in July 2013, Tribunals saw a 66% reduction in claims being pursued, with similar trends in subsequent years. Some commentators have placed the reduction of claims as high as 80%. This has led to significant criticism over the fees being a barrier to justice.
There is currently an exemption system in place where individuals qualify if their monthly income is less than £1,085. The MOJ has proposed an increase so that anyone who earns less than £1,250 will qualify for the exemption. This new figure would broadly be in line with full time National Living Wage earnings, although there is no suggestion that this figure would increase in line with the National Living Wage going forward. This and a number of other proposals are subject to a consultation which will close on 13th March 2017.
The MOJ has confirmed that with immediate effect, a number of claims which relate to insolvent companies will no longer be subject to fees.
The MOJ has suggested in its review that the sharp decrease in Employment Tribunal claims is, in part, a result of the mandatory ACAS conciliation process which came into force in 2014, which has been successful in helping a large number of individuals resolve their dispute and avoid the need for litigation. The MOJ may be criticised for overstating the impact and role of mandatory conciliation, as it cannot be a substitute for an effective and accessible tribunal system. The MOJ did however acknowledge that ACAS identified a group who have been unable to resolve their matter through ACAS but have not gone on to pursue an Employment Tribunal claim as a result of being unable to afford the fees.
Unison asserts that, instead of achieving the aim of weeding out vexatious litigants, the introduction of fees has simply punished lower paid employees with genuine grievances. Many also believe that, far from weeding out vexatious claims, those types of claims remain in the system. Unison therefore continue their legal challenge against the introduction of the fees and the case is due to be heard by the Supreme Court in March 2017.
Fabio Grech LLB (Hons) – Partner
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