Last week on this blog, I set out my initial response to the Ministry of Justice proposal to introduce modest fees for Employment Tribunal (ET) claimants and Employment Appeal Tribunal (EAT) appellants. In short, given the dire state of public finances, and continuing uncertainty about the precise location of the money tree, I do not think it is unreasonable to expect users of the ET system to make a modest contribution to the (not insignificant) cost of that system. The challenge is to devise a fees regime that is (a) fair and (b) does not create a barrier to justice.

In other words, the Hamletian question is not ‘to fee, or not to fee’, but how to fee.

I did not say – perhaps because I thought it did not need saying – that the design of the fees regime has to meet (a) and (b), while also delivering, in terms of fee income, a significant contribution to the overall cost of the ET system. Otherwise, one might wonder whether introducing a fees regime is worth the candle – a point well made by one employment lawyer last week. Martin Pratt of RWK Goodman was quoted in City AM:

While it is good that the Government has acknowledged that the prior excessive tribunal fees of up to £1,200 did not strike the right balance, I don’t think that the tiny dent of £1.3m-£1.7m that the new, much reduced, £55 fees will make in the £80 million annual cost of the Employment Tribunals make the exercise worthwhile.

Anyway, I like a challenge. And, to my mind, it really is not that difficult to devise a modest fees regime that (a) is fair to users, (b) does not obstruct access to justice, and (c) delivers significantly more fee income to the Ministry of Justice than the unfair fees regime set out in the Ministry’s proposal. This is not rocket science. As Tom Hanks would say, if we can send humans to the moon, we can devise a fair, just and effective ET fees regime. (And if you don’t believe Tom Hanks would say such a thing, then you need to go watch his Moonwalkers, at the Lightroom in King’s Cross until 21 April.)

As I noted last week, the Ministry’s proposed fees regime is unfair for two, simple reasons.

Firstly, with the introduction of mandatory Acas early conciliation in 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 (modest) fee to pursue an ET claim, employers should also pay a (modest) fee to defend an ET claim.

Secondly, there is no good reason why the tens, hundreds or even thousands of claimants in a multiple claimant case should pay only 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 than single claimants, but it is simply unfair that they should be able to use the ET system for a few pounds or even pennies each, while single claimants have to fork out £55. (In 2022/23, the 2,579 multiple claimant cases had an average of 21.3 claimants, so the average claimant in a multiple claimant case would have paid just £2.58 towards a £55 fee.)

Assuming (somewhat crudely, but I don’t think it matters that much) that there is one respondent employer for each single claimant and each multiple claimant case (MCC), in 2022/23 (the year on which the Ministry bases the Impact Assessment of its proposal), there were 30,417 single claimants, 32,996 respondent employers, 54,884 MCC claimants, and 1,400 EAT appellants. And you don’t have to have won the Fields Medal to recognise that charging all of those 119,697 users of the ET system, rather than just the 30,417 single claimants and 1,400 EAT appellants, a modest fee makes it much easier to ensure that the fees regime does not create a barrier to justice, while also delivering a more generous contribution to the Ministry’s balance sheet.

For example, the fee for single claimants, respondent employers and EAT appellants could be set at a very modest £35 (the cost of one day’s entry to Alton Towers), and the fee for MCC claimants at £20, and – after allowing for remission on the same basis as set out in the Ministry’s Impact Assessment – the regime would deliver total net annual fee income of £3.2 million, almost twice that of the Ministry’s proposed, claimants-only regime.

What’s not to like? (That’s a genuine question, btw – please do post your answer below.)