Employment Tribunal Issue Fees: A Brief Background
There have been many arguments presented over the years that the initial structure of the Employment Tribunal (‘ET’’) failed to prevent frivolous claims from being brought against employers. This is because, historically, there has been no fee payable by employees to issue their claims at the ET, and arguably, little by way of consequence for employees who progress baseless complaints against their employers. Namely because, if an employee’s claim is unsuccessful, they are not required to pay the employers legal costs (other than in exceptional circumstances[1]).
There was action taken by the Government to attempt to combat this issue. A Government Green Paper which was published in 1997 [2] suggested that, in order to try to reduce the number of potentially frivolous claims being brought to the Tribunal, they be given the power to dismiss claims at a pre-hearing review. This was implemented by the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004,[3] which allowed Tribunal Judges to essentially bar claims from being pursued if it was entirely clear from the outset that there were no grounds. This effectively meant that many claims, which would have ended up as unsuccessful, were shut down before costs were borne by either party.
In July 2013, the Coalition Government introduced issue fees at the ET, which were categorised into ‘Type A and B’ claims.
- Type A claims being less complex disputes for example claims for unpaid wages and holiday pay, which attracted a £160 issue fee and £230 hearing fee.
- Type B claims were more complex disputes for example claims for discrimination which attracted an issue fee of £250 and a hearing fee of £950.
- Any claims progressed to the Employment Appeals Tribunal (‘’the EAT’’), were subject to an issue fee of £400 and a hearing fee of £1,200.
According to the Government, the ethos behind the introduction of fees was that those who use government services should pay for them. Individuals could apply for full or partial fee remission; however, this was granted dependent on disposal of capital and gross income. The Lord Chancellor also had discretion to waive fees completely. However, this was only done in exceptional circumstances and on a case-by-case basis[4]
The introduction of ET fees saw a significant decline in the cases brought to the ET. Quarterly statistics which were published on 10 December 2015, indicated a reduction of two thirds of claims being brought from the years prior to the introduction of fees[5]. It was also reported in the Employment Lawyers Association Briefing in November 2015, that the ET estimated their workload to be around 45% less than it was pre-fees[6].
Written evidence was also produced by the President and Regional Employment Judges of the ETs of England and Wales in 2015, which suggested that the type of claims most affected were small track cases such as unpaid wages, and standard track cases such as unfair dismissal claims[7]. The most concerning and largest decrease was the number of sex discrimination claims brought. 2014 saw an almost 90% decline in these cases compared with 2013.
The introduction of ET issue fees in 2013 sparked controversy, and commentators and unions argued that these were not in line with the principles of Tribunals, and did not promote access to justice, as many low-income households, were not able to afford the fees. Most notably, the public sector Trade Union, UNISON made a total of four attempts to have tribunal fees quashed. UNISON was successful on appeal in 2017, which lead to the Supreme Court abolishing ET issue fees[8]. As it stands, there are no issue or hearing fees payable by employee who wish to make a claim to the ET.
The Current Government’s Proposals
On 29 January 2024, a consultation paper was published by the Government, with proposals to re-introduce ET and EAT issue fees.
This time around, there is no proposal to split the fees into categories. Instead, the Government is suggesting that an across-the-board issue fee of £55 be payable by employees intending to progress a claim to the ET or an appeal to the EAT.
Regarding its proposals, the Government has stated “The Ministry of Justice has carefully considered the 2017 Supreme Court ruling on the previous approach to fees in the employment tribunals and has endeavoured to ensure that the fees proposed in this consultation are proportionate and affordable, in line with the judgment.”
Although the new proposed fees are arguably more affordable than before, the consultation will likely provoke even more controversy. Employees and employers alike should keep a look out for updates as the Government’s Consultation progresses. [9]
[1]Vaughan v London Borough of Lewisham & Others (Practice and Procedure: Costs) [2013] UKEAT 0533_12_0606 (6 June 2013).
[2] Resolving Employment Rights Disputes–Options for Reform, Cm 2707/94 [6.21].
[3] Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861.
[4] The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013; Employment Tribunal and Employment Appeal Tribunal Fees Stakeholder factsheet, https://webarchive.nationalarchives.gov.uk/20160203143228/http://hmctsformfinder.justice.gov.uk/HMCTS/GetLeaflet.do?court_leaflets_id=2762;
[5] Ministry of justice, ‘Employment Tribunal and Employment Appeal Tribunal Statistics ‘ (UK Government Statistics) <https://www.gov.uk/government/statistics/employment-tribunal-and-employment-appeal-tribunal-statistics-gb> accessed 19 February 2024
[6] D Leach (2015) 22 ELA Briefing 9, 3.
[7] House of Commons Justice Committee Report, Courts, and Tribunals Fees, 2016 – 17, HC 16.
[8] R (Unison) v Lord Chancellor [2017] UKSC 51
[9] Ministry of justice, ‘Introducing fees in the Employment Tribunals and the Employment Appeal Tribunal’ (, 29 January 2024) https://www.gov.uk/government/consultations/introducing-fees-in-the-employment-tribunals-and-the-employment-appeal-tribunal/introducing-fees-in-the-employment-tribunals-and-the-employment-appeal-tribunal accessed 19 February 2024
