Earlier this month, on this blog, I posted my initial thoughts about the surprisingly-timed Ministry of Justice consultation on Employment Tribunal (ET) fees, launched on 29 January, as well as some further thoughts and my proposal for an alternative fees regime that would better protect access to justice while raising more money for the Ministry.

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 towards the annual £80m cost of that system. However, if there is to be a fees regime, then all users of the ET system – including respondent employers and each of the claimants in a multiple claimant case – should pay a fee, not just single claimants. And that would allow for a lower level of fee, and/or more case-type exemptions, and/or greater total fee income for HMCTS.

Earlier this week, the TUC published a joint statement with 47 other organisations “against Employment Tribunal fees”, the clear implication being that the 48 organisations oppose not just the modest fees regime proposed by the Ministry of Justice last month, but any ET fees regime. On principle, or something.

My response on X (formerly Twitter) to the joint statement soon had one of the many sanctimonious twerps at the TUC trawling through my X/Twitter feed all the way back to early 2014, when we still had the choice between “stability and strong government” with David Cameron/Theresa May/Boris Johnson/Liz Truss/Rishi Sunak or “chaos with Ed Miliband”, I was busy documenting the impact of the hefty ET fees regime introduced in July 2013, and the sanctimonious twerp was a journalist covering the City of London.

Whatever, the TUC’s joint statement did at least remind me that I hadn’t yet submitted my response to the Ministry of Justice consultation. So what follows is what I submitted to the Ministry yesterday.

1. Do you agree with the modest level of the proposed claimant issue fee of £55, including where there may be multiple claimants, to ensure a simple fee structure?

No. I accept, as the Supreme Court noted in 2017 in the UNISON judgment, that “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”. And I accept that a £55 claimant fee would not create an intolerable barrier to justice – to my mind, if a would-be claimant does not qualify for remission, and is deterred by a £55 fee, then perhaps the claim is not worth bringing (at an average cost to taxpayers of £2,400).

However, 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 a taxpayer-funded opportunity to resolve the issue, for free. So, if workers are to pay a fee to pursue an ET claim, employers should also pay a fee to defend an ET claim.

Furthermore, I see no good reason why the tens, hundreds or even thousands of claimants in a multiple claimant case (MCC) should pay only one £55 fee between them. All such MCC claimants are users of the ET system, and if their case is successful they will all benefit accordingly. In 2022/23, the 2,579 MCC cases had an average of 21.3 claimants, so the average MCC claimant would have paid just £2.58 towards a £55 fee.

I am aware that, in 2011-13, the TUC and others cited Chapter 6 of the HM Treasury Handbook ‘Managing Public Money’ to argue that it would be wrong to charge each MCC claimant the same fee as single claimants, because that would lead to HMCTS ‘making a profit’ on large MCC cases. However, with a fee set at just £55, there would need to be 44 or more claimants for an MCC case to generate total fee income in excess of the £2,400 average cost of processing an ET case, and as already noted in 2022/23 the average number of claimants in an MCC case was 21. So, this minor issue could be easily addressed by, for example, a cap on the total amount of fees paid in MCC cases. However, to my mind there is a strong, principled case for making MCC cases an exception to the ‘general principles’ set out in the HM Treasury Handbook.

Assuming (somewhat crudely, but I don’t think it matters much) that there is one respondent employer for each single claimant and each multiple claimant case (MCC), in 2022/23 there were 30,417 single claimants, 32,996 respondent employers, 54,884 MCC claimants, and 1,400 EAT appellants. And charging all those 119,697 users of the ET system, rather than just the 30,417 single claimants and 1,400 EAT appellants, a modest fee would make it much easier to ensure that the fees regime does not create a barrier to justice (by lowering the level of the fee, and perhaps by widening the scope for fee exemptions to cover simple wage claims), while also delivering a more substantial contribution towards the £80m cost of the ET system.

For example, if the fee for single claimants, MCC claimants and respondent employers was set at an even more modest £35, and the fee for EAT appellants at the proposed £55, then – after allowing for remission on the same basis as set out in the consultation’s Impact Assessment – the fees regime would deliver total net annual fee income of £4m, more than twice that of the proposed, claimants-only regime, and equivalent to 5% of the £80m cost of the ET system.

2. Do you agree with the modest level of the proposed EAT appeal fee?

Yes. For the reasons given in my response to Q1, above, the proposed EAT appeal fee does not seem unreasonable to me.

3. Do you believe this proposal meets the three principles set out in the consultation document?

Yes, I accept that the proposed fees regime meets the principles of Affordability, Proportionality and Simplicity. However, for the reasons set out in my reponse to Q1, above, the proposed fees regime is not fair, as it does not apply to all ‘users of the ET system’. To my mind, any ET fees regime should also meet the principle of Equity. And the principle of Equity demands that, if there is to be a fees regime, then all users should pay a fee (subject to remission and case-type exemptions).

4. Do you consider that a higher level of fees could be charged in the ET and/or the EAT?

No. To meet the principles of Affordability and Proportionality, the level of fees should be as low as is consistent with the objective of relieving “some of the cost to the general taxpayer”. And, as set out in my response to Q1, above, charging a fee to all users of the ET system, rather than only some of them, would allow for the fee level to be lower than the proposed £55.

5. Are there any other types of proceedings where similar considerations apply, and where there may be a case for fee exemptions?

Yes, I believe there is a strong case for exempting straightforward, low-value claims, such as wages claims. Indeed, there is case for such claims being resolved not by the ET system, but by the proposed Single Enforcement Body.

6. Are you able to share your feedback on the different factors that affect the decision to make an ET claim, and if so, to what extent? For instance, these could be a tribunal fee, other associated costs, the probability of success, the likelihood of recovering a financial award, any other non-financial motivations such as any prior experience of court or tribunal processes etc.

I do not feel able to add to what is set out in the consultation paper.

7. Do you agree that we have correctly identified the range and extent of the equalities impacts for the proposed fee introductions set out in this consultation?

Yes.