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 ofresponsesAt the time we consulted mediation by the judiciary was still in itsinfancy as a pilot and beginning to charge for it before its success hadbeen reviewed was premature; andIt did not take into account the savings that it generates from claims thatwould otherwise require a hearing to resolve.123. Employment tribunal judiciary were strongly opposed to a fee for mediation.They argued that mediation ensures that the employment tribunals systemdoes all it can to encourage the resolution of disputes, reduces the costs ofrunning the system and improves or at least maintains the employmentrelationship. It is also in line with the Government’s commitment to encourageresolution of disputes without the need for judicial determination. Their viewwas that a fee for mediation forces parties to go to hearing and should it becharged, mediation will no longer take place.124. In contrast the Council of Employment Tribunal Members’ Associations agreedwith the proposals and highlighted that there are others in the system (e.g.Employment Tribunal Lay Members) who are trained mediators who would beable to provide such an optional service at less cost.Our consideration of responses125. Given the continued availability of the taxpayer funded Acas conciliationservice, we do not accept that the Government’s commitment towardsalternative dispute resolution is weakened by charging for mediationundertaken by the judiciary. In addition, given the limited number of claims thatcan access mediation, we believe that on balance it is fair to charge a separatefee.126. Providing mediation by the judiciary is an additional cost borne by HMCTS thatis ultimately met by the taxpayer. In terms of requiring a fee, mediation isnormally attracts a cost and is generally met by employers.127. In terms of the fee level we proposed a fee of £750 for mediation that usuallylasts a day. We note that in comparison, whilst Acas conciliation is free, theirmediation service is charged at a rate of circa £1000 for the first day followedby £620 for subsequent days. Mediation is also offered by commercial firmswhere we understand that similar rates apply. Parties can decide themselveswho bears the cost or whether it is split, although again we understand that inemployment cases, it is usually borne by the employer. In light of this, we dothink that whilst it departs from our usual principle of seeking a fee from theparty who pays the order, that seeking a fee from the respondent is reasonableand the better approach than splitting the fee between the parties.128. We do not believe that the Government should offer a further free mediationservice given the funding of free Acas conciliation and the availability ofcommercial mediation. Whilst we acknowledge concerns about the level of thefee originally proposed, given the comparable fees charged for other mediationservices we do not propose to significantly alter the fee. However, we willinitially reduce the fee by 20% to £600 to encourage use and will monitor the32
Charging Fees in Employment Tribunals and the Employment Appeal Tribunal Summary ofresponsesimpact on the number of mediations undertaken to see if this should bechanged in the future.A7. Remissions129. The consultation proposed that the HMCTS civil court remissions policy isadopted in employment tribunals and made available for those individuals whocannot afford to pay part or all of any fee. To be eligible an individual claimantmust provide proof that he is either in receipt of certain permitted state benefitsor that his household income is below a certain threshold. In line with theapproach in the civil courts approach, proof of eligibility must be provided onevery occasion a remission is sought. There are three elements to the HMCTSremissions system which is outlined in Annex B.130. Several questions under both Options 1 and 2 dealt with remission issues.However, remission proposals underpinning both options is essentially thesame so the responses given to the following three questions are takentogether.Question 10 – Do you agree that the HM Courts & Tribunals Serviceremission system should be adopted for employment tribunal fees acrossGreat Britain? If not, please explain why.Question 11 – Are there any changes to the HM Courts & Tribunals Serviceremission system that you believe would deliver a fairer outcome inemployment tribunals?Question 26 – Do you agree with our proposals for remissions under Option2? Please give reasons for your answer131. Just over a quarter of all respondents who answered question 10 consideredthat the HMCTS remission system was suitable for implementation inemployment tribunals. 86 respondents replied to question 26. Just over 20% ofrespondents agreed with the proposals for remissions under Option 2. Twothirds of business respondents agreed, but other groups were united in theirdisagreement132. From business respondents, concerns were raised by British Chamber ofCommerce and the Federation of Small Businesses that claimants may haveaccess to cash through savings or redundancy/settlement payments that theproposed remission system would not take into account. The Institute ofDirectors noted that the time when someone might be expected to beaccessing the Tribunal might be exactly the time when then were in receipt ofsuch a benefit (even if for a short time), and that high proportions of full orpartial remissions would ultimately undermine the objectives of the proposals,leaving employers “continuing to fear the recourse of a tribunal.”133. Manufacturers Group EEF said that that the County Court is a very differentenvironment from the Employment Tribunal and assuming parity in some way33
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Charging Fees in Employment Tribunals and the ... - Ministry of Justice

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