On 31 January 2017, the Ministry of Justice launched the long awaited results of its review of the introduction of fees in the Employment Tribunals (the review document can be found here). It also, at the same time and within the same document, launched a consultation in relation to some limited proposed reforms to the current fee regime. The consultation period is set to close on 14 March 2017.
In relation to its review of the introduction of fees, the Ministry and Justice concludes that the introduction of fees has “broadly met its objectives”. In particular, it cites the following:
• users of the Employment Tribunals are now contributing between £8.5 million and £9 million a year in fee income, transferring a proportion of the cost of the Tribunals from the tax payer to those users;
• there has been a general change in approach with more people now using ACAS’s early conciliation service than were using voluntary ACAS conciliation and issuing claims, combined, under the old regime. Specifically, the Ministry of Justice refers to the following statistics:
(i) in 2012/2013 (the final full year before fees were introduced), it estimates that around 23,000 disputes were notified to ACAS as part of voluntary conciliation and 61,000 cases then issued in the Employment Tribunal;
(ii) in 2015/2016, it states that there were over 92,000 notifications to ACAS under early conciliation, with 18,000 cases then issued in the Employment Tribunal;
• ACAS early conciliation is effective in helping potential claimants resolve disputes and avoid Tribunal, with, where conciliation has not worked, many people still then going on to issue claims.
However, notwithstanding the above, the Ministry of Justice also recognises that there are some “lessons to be learned”. For example:
• it recognises there was a general lack of awareness of the fee remission scheme and that the guidance and procedures around the scheme were difficult to follow. It therefore relaunched the scheme with the title “Help with Fees” and has taken steps to try and simplify the related guidance and processes;
• it accepts the drop off in claims was greater than it originally anticipated;
• it accepts that some claimants (estimated at between 3,000 and 8,000) did not pursue their claims because they say they could not afford the fees (albeit the Ministry of Justice does not accept that, in all of these cases, the claimant could not genuinely afford the fees and refers to some claimants, by way of example, not being willing to sacrifice other areas of “non-essential spending”).
As a result of these issues, the Ministry of Justice has proposed some very limited reforms to the current regime, in addition to the changes already made in relation the “Help with Fees” scheme. The proposed reforms consist of an increase to the gross monthly income threshold for single persons for full fee remission from £1,085 to £1,250 and disapplying the fee regime entirely for certain claims relating to payments from the National Insurance Fund (which generally arise where a claimant’s employer is insolvent).
Given the significant drop off in case numbers following the introduction of fees, those who believe fees are a barrier on access to justice have been widely critical of the review and the limited nature of the reforms being proposed. Politically, it is, however, extremely unlikely that anything significant will change once the consultation closes and the fee regime will almost certainly therefore continue in much the current form, with the changes referred to above constituting minor tinkering around the very edges only.