A ripple of excitement ran through ’employment law & policy’ X (formerly ’employment law & policy’ Twitter) yesterday, when the Ministry of Justice unexpectedly presented us with an opportunity to dust off a much-used hashtag from the past: #ETfees

It was once said of the (fabulous) Smiths’ song Stop me if you think you’ve heard this one before that it “speaks of where the mind goes at the most desperate and desolate of times”. And the consultation paper issued by the Ministry of Justice yesterday certainly seemed to take a lot of trade unionists, employment lawyers and legal journalists back to one of the Ministry’s most desperate and desolate of times: the justice-denying and ultimately doomed #ETfees regime of 2013-17, dreamt up by cuddly Ken Clarke in 2011 and implemented under Failing Grayling in July 2013.

However, the proposed fees regime set out in the consultation paper – a nominal £55 fee for claimants, and for appellants to the EAT – is very different to that belatedly struck down by the Supreme Court in July 2017, after the supposedly mega-brained judges of the High Court and Court of Appeal had somehow failed to grasp the rather obvious point that fees of up to £1,200 “are in practice unaffordable by some people, and prevent even people who can afford them from pursuing claims for small amounts and non-monetary claims”. The consultation paper laudably states:

The Ministry of Justice recognises that the fees introduced in 2013 did not strike the right balance between meeting the policy objective for claimants to meet some of the costs of the ET and EAT and protecting access to justice. Therefore, in developing the fee proposal subject to this public consultation, careful consideration has been given to the lessons learned following the Supreme Court judgment, especially in relation to affordability, proportionality and simplicity as the three key principles underpinning a fair and balanced approach to setting fees in the ET and the EAT.

The issue of ensuring affordability is particularly acute in the ET given the limited time available to claimants to bring a claim and pay any fee. Claimants have up to 3 months to submit their claim (or 6 months for claims about redundancy or equal pay). The issue of proportionality is equally important when considering the overall level of fee as the remedies sought through the ET and EAT are varied and include numerous non-monetary remedies. The 2018 Survey of Employment Tribunals Applications (SETA) found that for claimants who had been successful at employment tribunal and were awarded a sum of money, 4% were awarded less than £500, with the overall median value of financial compensation received by claimants successful at a hearing being £5,000. Other claimants however sought non-monetary awards. Therefore, it is critical that fees are not set at a level that could render pursuing low value or non-monetary claims irrational and futile.

Given the dire state of public finances, and the fact that the Supreme Court explicitly left the door open for a fees regime based on modest fees (see paragraphs 86 and 87 of the judgment), it was inevitable that ministers would one day come back with a more modest fees regime, and I am somewhat surprised it has taken them six years to do so. And, even if the current bunch of squabbling ministers had not done so, there is a very good chance that incoming Labour ministers would take up the mantle. (Let’s not forget that it was Tony Blair’s Nu Labour government that first tried to introduce ET fees, in 2001, and which later created – in section 42 of the Tribunals, Courts & Enforcement Act 2007 – the extraordinary power subsequently exploited by Tory/Fib Dem Coalition ministers to introduce ET fees by way of secondary legislation in 2013.)

As the trade union UNISON was bemoaning only yesterday: “Libraries, children’s centres and youth services are being closed. Care and services for schools, vulnerable and disabled people are slashed to almost non-existent in some areas.” So, unless and until someone locates the money tree, there is a good case for ET users to make a (modest) financial contribution to the (significant) cost of the ET system. In the words of the Supreme Court (paragraph 86 of the judgment):

Fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice.

Is £55 an unaffordable sum? To put that sum in perspective, it costs £82.50 to renew or replace a UK passport. A provisional GB driving licence costs £34, and a TV licence costs £159 per year. A one-day ticket to Alton Towers costs £35, entry to the Tower of London costs £33.60, and the cheapest ticket to watch Manchester City at the Etihad Stadium costs £58. In the Small Claims Court, the issue and hearing fees for a claim worth less than £300 total £62, while those for a claim worth between £500 and £1,000 total £155.

For someone working 35 hours per week on the legal minimum wage (i.e. with an annual salary of £18,964), membership of the trade union UNISON costs £138 per year, basic membership of the trade union Unite costs £112 per year, and membership of the trade union GMB costs £175 per year.

Whatever, as I argued in 2012 and 2013, with the introduction of mandatory Acas early conciliation from 2014, respondent employers are as much ‘users’ of the ET system as claimants, because the State has already provided them with an opportunity to resolve the issue, at taxpayers’ expense. So, if workers are to pay a fee to pursue an ET claim, employers should also pay a fee to defend an ET claim.

Both parties paying the same modest fee would double the total fee income to HMCTS, or allow for an even lower level of fee for everyone, and/or a lower fee or (my preference) no fee at all for those claimants making simple, low-value claims for unpaid wages or missing pay slips. As my good friend Audrey Ludwig of Suffolk Law Centre noted earlier today, such claimants can struggle to make evidenced applications for fee remission.

Furthermore, why should the tens, hundreds or thousands of claimants in a multiple claimant case only pay one £55 fee between them? They are all users of the ET system, and if their case is successful they will all benefit accordingly. Maybe they should each pay a smaller fee, but there is no good reason why they should be able to use the ET system for a couple of pounds each, while single claimants have to fork out £55 (based on 2022/23, the average claimant in a multiple claimant case would pay just £2.58). And, again, the fee income from multiple claimant cases would then allow for a lower level of fee all round, and/or exemption for simple, low-value claims.

Sadly, the consultation paper does not explore or seek views on such alternative fee regimes. But the proposed fees are not due to come into force until November this year, by which time we might have a new, Labour government. And, if they are not simply to scrap the proposed fees for claimants, the new Labour ministers really ought to give serious consideration to those alternative options. Which means shadow ministers should be doing so now.

So it was disappointing, though not surprising, to see a typically dumb, knee-jerk response from the TUC and others yesterday. If all the Tory cuts to the NHS, libraries, children’s centres, and services for schools, vulnerable and disabled people are not to be quickly corrected by an incoming Labour government – and, let’s face it, they won’t be – why should the ET system remain free to its users?

The days when taxpayers shoulder the entire cost of the ET system, without any contribution from users, are gone – at least for the time being. The challenge, therefore, is to devise a fees regime that is fair and does not create a barrier to justice. So the TUC and trade unions need to do more than stamp their feet and yell that “these fees are just an invitation for bad bosses to ride roughshod over workers”.

Shadow ministers need to get some grown-ups in the room.