The lord chancellor yesterday told MPs that his department intends to bring back employment tribunal fees.
In July, the Supreme Court decided that employment tribunal fees were unlawful and should be abolished.
However, speaking in front of the justice select committee yesterday morning, David Lidington pointed out that the judgment did not rule out charging fees entirely. “We still intend to charge fees,” he said. “I think it is necessary as a contribution to costs. It is also necessary and sensible as a deterrent to frivolous or vexatious litigation and that was something the court itself acknowledged.
“The key lesson that I took from the judgment was that fees are… a reasonable way in which to secure a contribution towards the running costs of the courts and tribunals service but that, in setting the level of fees, the government needs to be very careful in regard to questions of access and affordability.”
Lidington said he accepted that the government had got the balance wrong on how much it should be charging.
But Robert Neill, chair of the justice committee, pushed back on the suggestion that the sharp decline in claims being brought – cited as much as 70 per cent during the course of the case itself – had been caused purely by those with meritless claims pulling out, saying that the Supreme Court judges had also made this point in their ruling.
Lidington was less clear on what the future held for those who had wanted to bring a claim but had been put off by the cost. “It is almost impossible, I think, to come to an objective assessment of whether somebody was deterred because of a fee level rather than perhaps deterred because they were persuaded that their case was not likely to succeed,” he said.
Commenting on Lidington’s remarks, Nicholas Le Riche, employment partner at Bircham Dyson Bell, told People Management: “[His] comments are not a surprise given that the government’s views on the importance of tribunal fees hasn’t changed. However, given its more pressing priorities at the moment, there have to be doubts about whether the government will want to spend time on this issue since the amount of money generated by fees was always a fraction of the overall costs of the tribunal system. Any new fee arrangement would almost certainly need to be at a lower rate to be lawful, which would bring in even less money.”
Less than a week ago, the Ministry of Justice launched the first phase of its plans to refund fees to those who had paid them after they were introduced in 2013, which will involve writing to as many as 1,000 individuals who had contacted the government since the judgment. It intends to widen the scheme out to others – including employers that have been ordered to pay costs on behalf of somebody bringing a claim – in November.
MP Ellie Reeves, a member of the justice committee, questioned whether the refund scheme would be “simple to use and effective… so that no one misses out”.
Richard Heaton, permanent secretary to the Ministry of Justice, noted that, while tribunal records would be used in the first instance to contact those who were due a refund, there were more complicated cases – for example, where an intermediary such as a trade union had been involved – where identifying who would need to be repaid would not be a straightforward task.