Charging Fees in Employment Tribunals and the ... - Ministry of Justice

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Charging Fees in Employment Tribunals and the Employment Appeal Tribunal Summary ofresponsesweek’s wages in respect of holiday pay and the individual ispaid just above the threshold which would allow them toqualify for remission. That person may decide that they willnot pursue the sum due. This could have the consequenceof encouraging a less than fair employer to routinelydeprive employees of small sums of money to which theyare entitled on the basis that the risk of them pursuing aclaim will be small.ii) Respondents thought that there was no reason for claimants tohave to pay to bring proceedings against an insolvent employer givenGovernment policy to cushion employees from the effects of insolvency byunderwriting such claims through the Insolvency Service. The onlyrecourse a person may have to recover the sum due from an insolventemployer is to initiate employment tribunals proceedings and unless theInsolvency Service refunded the fee, claimants will have incurred a feewhich with minimal prospect of recovering the award and may gain little ornothing from the proceedings. This is demonstrated by the followingcomment from the Money Advice Group:Where an employer has ceased trading, but not been madeinsolvent, and it owes wages, redundancy pay etc.employees HAVE to raise an ET claim or the RedundancyPayments Office will not pay them out of the NationalInsurance Fund.iii) Respondents felt no fees should apply when appealing againstdecisions of a Government body such as the Health and Safety Executive,Department for Business, Innovation and Skills, or by employers againstlevy assessments of an Industrial Training Board. It was argued that theserepresent a small number of appeals per annum (circa 500) andrespondents said that given the small number of these claims, this wouldnot impact on the effectiveness of the overall fee structure. Neither could itbe seen as promoting or encouraging these types of claim in lieu of othersbecause there was no alternative claim that could be brought.iv) Respondents argued that discrimination claims should not pay afee. The Equality and Human Rights Commission stated:The Commission believes that requiring payment of a fee tobring a discrimination claim may breach the principle ofeffectiveness as it will make it difficult for individuals toenforce their EU law rights. We do not think that themeasures set out at paragraph 3.5 of the EIA will "ensurethat no one is denied access to justice through theintroduction of a fee." Nor do we think that those measuresare likely to be proportionate and thus justify what wouldotherwise amount to indirect discrimination.Others argued against it either on the basis of theimportance to society or on legal grounds namely:16
Charging Fees in Employment Tribunals and the Employment Appeal Tribunal Summary ofresponsesRequiring payment of a fee to bring a discrimination claim maybreach the principle of effectiveness as it will make it difficult forindividuals to enforce their EU law rights;The aim of the Equality Act is to enable progress towards equality inthe workplace and the introduction of fees would interfere with thataim because of its deterrent effect;The pay gap between certain groups remains significant, andparticularly disadvantages women, people with disabilities, andsome ethnic minority groups; andThe proposal, despite the measures which address the access tojustice issue arising from the introduction of fees, may breach theUK's obligations under Articles 6 and 14 of the ECHR.vi) A few respondents argued for exemption for whistle-blowing claimson the grounds that the key policy aim of the whistle-blowing legislation isto protect those who witness wrongdoing, malpractice or a safety danger intheir workplace so they can raise their concerns at the earliest opportunity.Without this reassurance of protection from reprisals, whistleblowers maynot feel encouraged to come forward, which could reduce the aims of thislegislation.v) Other claims that were proposed for exemption included protectiveawards, TUPE claims, interim relief, and Trade Union led matters. It wasargued that the nature of these claims is such that more than one set offees would be payable to enforce the order (as the initial applicationprotects the position and can be followed by a substantive hearing), and onthe basis that it relates to legitimate trade union activity.Our consideration of responses51. We looked again at all the claim types considered for exemption. At this stagewe remain of the view that no claims or appeals made to the employmenttribunals should be exempt from fees. Our general reasons are:It is not the aim of the policy to deter claims through the introduction offees; it is our aim that those who can afford to pay should make acontribution towards the cost;It is right that irrespective of the type of claim or appeal all those whomake a claim and all those that defend a claim consider carefully theimplications and fees can help to encourage parties to think through theactions they take and explore all options for resolving the dispute;The approach places claims on the same footing as claimants in thecivil courts where there are no exemptions (e.g. injunctions, divorce,money claims etc);17
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Charging Fees in Employment Tribunals and the ... - Ministry of Justice

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