Paternity leave and Employment Tribunal fees: an update

As far as employment law is concerned, 2024 is proving to be the year of change, with some changes already in force and many more set to happen from April onwards. For details of these, see our blog here. We are also running an employment update webinar on 28 February 2024 covering these changes. Please contact us if you would like to attend.

This blog provides an update on two more changes (or proposed changes) to add to the mix: amendments to the current paternity leave scheme and the Government’s proposal to reintroduce fees for bringing an Employment Tribunal claim. 

Changes to statutory paternity leave

Following a consultation in 2019 and the Government’s response in summer 2023, the Government has published draft legislation to makes changes to the current paternity leave regime: Paternity Leave (Amendment) Regulations 2024.

The changes made are not major, but they do introduce greater flexibility for employees wishing to take statutory paternity leave:

• Employees will be entitled to split their two weeks of statutory paternity leave into separate one-week blocks.
• Employees can take their two weeks at any time within the first year after birth or adoption of a child, whereas currently they are limited to eight weeks following birth.
• Employees will only be required to give 28 days’ notice for each period of leave, replacing the current 15-week notice requirement (for domestic adoption cases the notice period will remain within seven days of being matched with a child). However, employees will still need to give notice of their entitlement to take leave 15 weeks before the expected week of birth.
• Employees may give 28 days’ notice to vary the dates of each period of leave.

The new regulations will apply to any case where the expected week of childbirth begins after 6 April 2024, or the expected date of placement for adoption is on or after 6 April 2024.

In light of these changes employers, will need to ensure they review and, if necessary, update their policies and practices to incorporate these reforms. Many employers already have paternity leave policies which are more generous than the current statutory scheme. However, it is still important that employers check these to ensure they at least match the changes coming into effect.

A return to Employment Tribunal fees?

Those who have worked in employment law for a while will remember Employment Tribunal (ET) fees being introduced by the coalition government in 2013. There were separate fees for bringing a claim and for going to hearing, which ranged from £390 to £1,200 depending on the case. The result was a dramatic reduction in the number of Tribunal cases which were brought (cases fell by 53 per cent in the first year).

In the 2017 case R (on the application of UNISON) v Lord Chancellor, however, the Supreme Court dramatically ruled that the payment of fees was unlawful, on the basis they prevented access to justice, with the result that fees immediately stopped being payable and the Government was forced to reimburse all fees which had been paid. 

Last week, in an unexpected move, the Government announced a proposal to introduce “modest fees” in the ET and Employment Appeal Tribunal (ironically I told someone just that morning that I didn’t think ET fees would return, how wrong I was!). A consultation on the proposed reintroduction of fees is currently open and will continue until 25 March 2024.

The Government’s proposal is for a flat fee of £55 that is payable by the claimant on bringing a claim to the ET, which it indicates it will introduce from November 2024. There will be no distinction between different types of claims and no additional fee payable for going to hearing. Where there are multiple claimants, the claimants would be treated as a single entity and the fee would remain as £55. A fee remission scheme would be put in place to provide assistance to those who could not afford it.

The Government explains its reasons for charging fees are to incentive settlement, alleviate the pressure on the ET, generate resources which can be reinvested into the system and reduce the cost borne by the tax payer, and also put ET users on a similar footing to users of other courts and tribunals, where fees are charged. The Government states that “careful consideration” has been given to the lessons learned in the Unison case and that its new proposal is fair and balanced, underpinned by the principles of affordability, proportionality and simplicity.

Certainly what the Government is proposing is significantly more reasonable than the fee regime previously in place. Whether it turns into anything concrete though will have to be seen. The Government does not have a strong track record of acting on employment consultations quickly, and there are some hurdles to overcome. First, there is an election looming, which most expect will happen this year. Will this be a priority for the Government to push through in advance of that? Moreover, there is a question over the economic viability of the scheme. Once up and running, the Government estimates ET fees could bring in £1.3 to 1.7 million per year, small fry compared to the cost of running the ET, which in 2022-23 was £80 million. 

Trade unions are also already speaking out against the proposed reintroduction of fees, arguing they are a hurdle to vulnerable people seeking justice. Given the part the unions played in bringing down ET fees last time, it seems unlikely that any new scheme will go unchallenged. This is particularly given the fact that the Government’s own Equality Statement acknowledges that individuals from a Black, Asian or ethnic minority background, men, those over 45, and those with a limiting disability “will be disproportionately affected by the introduction of any fee”. Although the Government believes this would be justified, the unions are unlikely to let the issue go uncontested.

This is certainly one to watch with interest. 

With thanks to Jessica Bennett, current trainee in the team, for their help in preparing this briefing.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2024