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One year on from the scrapping of tribunal fees, where are we now?

26 Jul 2018 By Hayley Kirton

Four things HR needs to be aware of about 2017’s landmark decision

One year ago today, the Supreme Court unanimously ruled that tribunal fees were unlawful and needed to be abolished. People Management marks the decision’s first birthday by taking a look at how things have changed since. 

Case numbers have risen...

Perhaps unsurprisingly, the number of tribunal claims lodged has increased since last year’s ruling. The latest figures from the Ministry of Justice (MoJ), released in June, revealed the number of single claims – claims brought by a sole employee or worker, as opposed to by a group of people – received in the first quarter of 2018 increased to 9,252, up 118 per cent compared with the year before. 

“It was a logical conclusion to come to when fees were abolished immediately upon the finding that they were unlawful, that the number of employment tribunal claims would rise again,” said Andrew Willis, head of legal at CIPD HR-inform. “The removal of the financial barrier that had prevented so many from making a claim was no longer there and the public no longer had anything to lose.”

However, claims have not returned to the levels seen before the fees started being charged. In the year to June 2013, shortly before fees were introduced, an average of just under 13,500 single claims were brought each quarter. 

...and it’s taking longer for them to be heard

The latest MoJ figures also revealed an 89 per cent year-on-year increase in caseloads outstanding. 

“With more hearings being listed, parties are having to wait longer until their case is dealt with because of [the] backlog being created,” said Andrew Willis, head of legal at CIPD HR-inform.

The Judicial Appointments Commission recently ran a recruitment exercise looking for 54 salaried employment tribunal judges, no doubt in an effort to ease some of the burden on the overstretched system. The application process closed earlier this month. 

People have started to get their money back

Shortly after the country’s top court handed down its judgment, the government announced it would be refunding fees to anybody who had paid them since their July 2013 introduction. Between the scheme launching last October and the end of this March, £6.6m in total has been refunded in 7,733 claims, although 9,472 refund applications have been made. 

However, trade union Unison, which brought the case to court, today slammed the government’s refund programme for its slow progress. “Putting right this huge wrong should have happened faster,” said Christina McAnea, Unison assistant general secretary. “The government must make much more of an effort to pay back the money it owes to thousands of people, and promise to never again introduce such a huge barrier to justice.”

Responding to Unison's comments, an MoJ spokesperson said: “Since launching our refund scheme in October we have been working hard to process refunds to those eligible. We are working with trade unions to get the message out and have also been sending around 10,000 letters a month to those people we think may be eligible.”

There’s been talk of reintroducing fees

The Supreme Court judgment didn’t completely rule out tribunal fees and government ministers have hinted that they wish to reintroduce them. Back in October 2017, then lord chancellor David Lidington told the justice select committee: “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.”

However, with Brexit less than a year away, it could be argued the government has more pressing issues on its hands than bringing back tribunal fees. It’s also questionable whether any such legislation would pass easily through parliament, since the Conservative party lost its overall majority in the 2017 general election and both the Labour and Liberal Democrats parties vowed to scrap tribunal fees in their pre-election manifestos. 

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