Employment tribunal fees. Three words guaranteed to make any employment lawyer’s eyes roll and, you would think, any Government minister’s face redden with some embarrassment before he or she tried to move the conversation on to something less controversial.

Readers will recall that fees were introduced in July 2013 resulting in a 78% drop in tribunal claims, at least two judicial review applications, promises of reviews of the scheme, one Court of Appeal hearing and then a Supreme Court decision in which the fees were ruled to be unlawful. The regime that was put in place to collect fees suddenly morphed into a regime that had to refund them. To date, more than £18m has been handed back.

The Times reported that the Ministry of Justice has written to the Law Commission inviting it to ‘provide recommendations for creating a coherent system for charging and updating fees in the future’. That would clearly be a departure from 2013 when an incoherent system for charging and updating fees was introduced. Part of the problem then was the lack of a clear and transparent objective in the introduction of fees. While it was pitched as a scheme to ensure that the users of tribunals paid for the tribunal system, as opposed to taxpayers (missing the point that users of the system are, overwhelmingly, taxpayers), there was more than a suspicion that, given the levels of fees levied, it was really being done to choke off demand and allow employers to escape effective regulation and undermine employment rights. Few can forget that fees were introduced shortly after the Beecroft report (commissioned by David Cameron) suggested a much-reduced level of employment protection for workers and employees.

Before anyone gets carried away with arguments about unsustainable levels of tribunal claims, the costs of the system or too many unmeritorious claims, it is worth returning to some facts. While tribunal claims have increased since fees were found to be unlawful they have not returned to pre-fee levels. The latest figures show that for the most recent complete year – 2019 – 38,229 single claims and 70,363 multiple claims were lodged. That is a total of 108,592. In 2012 (the last complete year before the introduction of fees) 55,225 single claims and 132,791 multiple claims were lodged, a total of 188,016. We are a long way off those levels, and this is in the context of 32.78m people being in work in 2019 compared to 29.7m in 2012. If you are not in work, there are fewer rights available to you to enforce.

In terms of the cost of tribunals, when fees were introduced it was £84m a year. Apart from reforms to drive costs down, the funding available has been cut. This means the cost is unlikely to be more than £80m a year now. Total Government spending in 2019 was £847.6bn. This means that the cost of employment tribunals is less than 1/1,000th of Government spending, yet it provides a free service to the entire working population to enforce their rights. To cover the costs of the service would require an average fee on current case levels of more than £750 per case. The most common complaint is about unlawful deductions from wages and it is unlikely fees at that level would make it viable to pursue such a claim.

Whether to introduce fees and at what level is largely a political decision. ELA is not a political organisation but one of its aims is to promote the best practice of employment law. That includes access to justice in the employment tribunals and how they operate. Given the past experience of the fees regime, this is an area that is legitimate for scrutiny.

Alex Lock, DAC Beachcroft LLP