The GULS Law Review

Getting you through the GU law degree!

header photo

Employment Tribunal Fees: Killing the Claimant


Written by Andrew Rutherford (4th year LL.B)

Since their introduction by the Industrial Training Act 1964, Employment Tribunals have become a cornerstone of our legal system. The Tribunals hear claims which range from recovery of holiday pay to complex equal pay cases involving thousands of claimants. Work is an essential part of everyday life and the system sought to recognise the importance of allowing access to employment law protection. In a stretched job market employers enjoy supreme bargaining powers with employees and potential employees. It is therefore essential that access to employment protection is unhindered.  The Tribunal system was originally designed to be accessible and to encourage self-representation. However, growing complexities in employment law have seen numbers of claimants with no representative fall to below 5%.[1] Despite this, many employers feel that the accessible nature of Employment Tribunals leads to a number of frivolous, time-consuming and expensive actions at a great cost to businesses and to the taxpayer. This has led the government to introduce Employment Tribunal Fees of £950 for each claim with the aim of transferring £74 million from the taxpayer to the Employment Tribunal user. But does this offer too much protection to the employer at the expense of the employee? Is it fair? And, more importantly, is it legal?

The fees, which are set to be introduced on the 29th of July, join a raft of regulations designed to protect the employer. In most cases, to bring a claim of unfair dismissal, an employee must have two years continuous service. Even if this requirement is met they must not only show that the dismissal was unfair, they must also show that it was outwith the band of reasonable responses. This test means that employees are rarely successful in convincing the Tribunal to award them compensation. Additionally, out-of-work claimants often struggle to afford a solicitor to represent them and must instead rely on a trade union representative. Claimants only have a restrictive three month window in which to bring their claim which is incomparable with the three year window which applies to personal injury claims. To say that the system is currently weighed in favour of the employer is a colossal understatement and the introduction of tribunal fees will only see the balance tip so far in the employer’s favour that the employee’s pursuit of a remedy will be hopeless, unaffordable and unrealistic.

Thus, the introduction of fees has been met with wide condemnation. The Law Society of Scotland has stated that it believes the fees to be a “barrier to justice”[2] and that they will hit the “‘squeezed middle” the hardest as they will not be eligible for fee remission. Additionally, it is likely that the fees will disproportionately affect women as the tribunals have jurisdiction over sex discrimination and equal pay cases. The indirect discrimination caused by the fees is one of many arrows in the quiver of those opposed to Tribunal Fees.[3] Whilst there are many who believe that action needs to be taken to tackle the “Claims Culture”[4] and to encourage early settlement it is widely believed that forcing the Claimant to pay fees before a claim is brought will fail in achieving the aims [5] of employment law protection and is inherently unfair.[6] It is, therefore, no surprise that judicial review proceedings have been lodged against the introduction of fees which seek to challenge their legality.

The first of these judicial review applications was lodged by UNISON in England. It was a written application on four grounds:

  1. Fees restrict individual employment law conferred by European Union Law to the extent that they are virtually impossible or excessively difficult.
  2. “It is a breach of the principle of equivalence to require significant fees to be paid to vindicate EU rights where no fees are required to vindicate similar rights derived from domestic law.”
  3. The government has failed to carry out proper public sector equality impact assessment.
  4. The introduction of fees will disproportionately affect women.

The High Court in England rejected this application on the 23rd of July.[7] However, UNISON has stated that it will apply for a full oral hearing.

Meanwhile, in Scotland, Employment Law specialists Fox and Partners have lodged an application for judicial review on similar grounds. The firm failed in its bid to block fees with an interim interdict but was successful in being granted a full hearing to be heard later this year. Furthermore, Lord Bannatyne ordered costs and expenses to be paid by the Lord Chancellor’s department and reportedly stated that the conduct of their response had been “a complete waste of time”.[8] The application will proceed on both Domestic and European law and, if successful, would see the government being forced to reimburse all those who pay fees before the application is reviewed.

But how likely is the challenge to succeed? On the face of it, the argument of equivalence appears extremely strong. EU law prohibits the requirement of fees to enforce EU rights when there are not equivalent fees in the protection of domestic rights. As many employment rights are conferred from European Union Law, the fees required must be equivalent to those payable in the protection of other domestic rights. The £950 required to bring a claim in the Employment Tribunal is significantly higher than the £207 hearing fee which applies in the Sheriff Court.[9] It is difficult to see how this can be justified since a claim that fees are necessary to prevent vexatious litigants can be easily dismissed. When a claim is vexatious a respondent may apply for costs to be awarded additionally and if a claim has no reasonable prospect of success then it may be struck out without a hearing. These mechanisms adequately protect employers from incurring the cost of defending a hopeless claim and it appears that there is little need for the extortionate hearing fee in employment tribunals. This particular ground of the judicial review application therefore seems to have a significant chance of success.

Furthermore, it is certainly likely that women will be disproportionately affected by the introduction of fees. Not only are the Tribunals used for equal pay cases but they are also used for sex discrimination claims. These claims will now incur Tribunal Fees. It is difficult to contemplate any reasonable justification for this indirect discrimination and it seems likely that the application may be successful.

In times of economic difficulty it is obviously of extreme importance to protect businesses as much as possible. Clearly, the government had this in mind when deciding to introduce Tribunal Fees. Such logic is flawed as a business is only truly valuable to the economy if it offers secure employment. Introducing radical employment fees makes it extremely difficult for employees to enjoy the benefits that businesses confer as they will be unable to protect themselves from unfair dismissal, discrimination and harassment. It is clearly an attempt to rid the tribunals of the “pesky” claimant without due consideration of the consequences. The outcome of the judicial review application will have a colossal effect on employment relations for years to come and a failure to block the introduction of fees could see thousands of Davids finally crushed below the foot of their respective Goliath.

[1]p10, Table 4- Employment Tribunals and EAT Statistics, 2011-12

[2]IDS Employment Law Brief 947, April 2012


[4]'Countering the Claims Culture' Emp. LJ. 2013, 141(Jun), 6-8

[5]IDS Employment Law Brief 947, April 2012

[6] Statham, P. 'Why Tribunal Fees are Unfair' Employer's Law 2012, Nov, 11


[8]'Fees Challenge to Proceed' Fox and Partners July 11th Available at: <>

[9] Sheriff Court Fees Available at <>

Go Back