The Ministry of Justice has published its long-awaited review of Employment Tribunal Fees, analysing the facts and figures and making (fairly minor) proposals for change. This will be a disappointment for those hoping for a radical rewrite of the rules.
However, the government highlights that one reason for this is the increased use of ACAS during early conciliation. It confirmed that 48% of potential claims are being settled through ACAS.
The review accepts that the evidence shows that people are being discouraged from bringing claims where ACAS does not work, but it argues that there is no conclusive evidence that they are actually being prevented from doing so.
The report confirms that ACAS has identified a group (which is estimated to be between 3,000 and 8,000 people) who were unable to resolve their disputes through conciliation but did not go on to issue proceedings because they said that they could not afford to pay.
However, the government states that they do not believe that this necessarily means that those people could not realistically afford to pay the fee but may have prioritised their other non-essential finances.
Accordingly, the government does not propose to change the fees regime dramatically.
The main proposed change is to widen the scope of the fee remission scheme (the Help with Fees scheme) to include all individuals with a gross monthly income threshold at broadly the level of someone earning the full-time National Living Wage (£1,250 per month). This is an increase from the previous position where fee remission was only available to those earning £1,085 per month.
Additional allowances for people living as couples and for those with children would be maintained. In essence, this means that those on lower incomes would be exempt from paying tribunal fees.
The government has also taken steps to “simplify and streamline the Help with Fees scheme”, including clearer guidance and a simplified application procedure, as well as a new online application process.
The consultation also proposes to remove fees for some proceedings which relate to payments from the National Insurance Fund (i.e. cases which would usually involve an insolvent employer who would be unlikely to be able to reimburse fees if the claim is successful).
Consultation on the proposals will run until 14 March 2017.
As the proposals are far from radical, cynics may well question whether a minor increase in the threshold for fee remission is likely to significantly increase the number of claims being brought.
We will have to wait and see.
Things may change again later this year when the Supreme Court considers UNISON’s challenge to tribunal fees on the basis that they prevent access to justice.
The case is due to be heard in March.