In April 2013, fees will be introduced into the Employment Tribunal system for the very first time. Up until now, Claimant’s have not had to pay any fees to enforce their employment law rights. This is because when the Tribunal system was first set up, it was designed to provide free access to justice so as not to deter employees from enforcing their rights against unscrupulous ‘hire them and fire them’ type employers.
 
Nevertheless, from April 2013, fees will be introduced. Claimant’s wishing to bring claims for unpaid wages and redundancy pay will have to pay an initial issue fee of £160, and a further fee of £230 should the matter go to a hearing (i.e. a total fee of £390). However, those wishing to bring dismissal, discrimination, and equal pay claims will have to pay even higher fees of £250 to issue the case, and a further fee of £950 should the matter go to a hearing (i.e. a total fee of £1200).
 
The Coalition Governments justification for these new fees are as follows:-

• That it will reduce the bill for running the Tribunal system to the taxpayer
• That it will encourage employers and employees to look for alternatives to litigation
• To deter employees with weak and vexatious claims from bringing them in the first place.

However, the decision to introduce fees has many critics. For example, Counsel General, Theo Huckle QC, The Welsh Government’s Chief Legal Adviser, argues that: "True and free access to justice for all citizens, whether their claims are popular or unpopular, is an integral part of the democratic settlement in the UK. This decision totally undermines that principle. The process of approaching a legal court or tribunal is off-putting for most citizens. The thought of doing so without direct legal advisory support and representation is daunting in the extreme. To be required to do so and pay substantial fees as well in advance will undoubtedly deter many applicants with good claims who will thereby be denied access to justice."

Brendan Barber, General Secretary of the TUC stated: "It is vital that working people have fair access to justice, but introducing fees for tribunals will deter many - particularly those on low wages - from taking valid claims to court. Many of the UK's most vulnerable workers will simply be priced out of justice…..workers will be more likely to be mistreated at work as rogue bosses will be able to flout the law without fear of sanction." David Prentis, General Secretary of Unison added: "This is a disgraceful move that tips the scales of justice heavily towards employers, and denies legal redress to those who do not have the cash to pay for it. Because we do not have class actions in this country, Unison has been involved in lodging equal pay claims for hundreds and thousands of women. If those women did not have union backing, and had to pay up front for access to justice, many would have lost out."

The decision to introduce fees breaches a fundamental principal of justice by denying access to justice for all. Essentially, requiring Claimant’s to pay £1200 to bring dismissal and discrimination claims will deny access to justice for many. Imagine being unfairly dismissed and rendered unemployed? Would you pay £1200 to bring an unfair dismissal claim? The answer for many (and probably most) will be no, regardless of how strong their case was. Look at it from another perspective. Have you ever been the victim of bullying and harassment at work? Have you ever been unfairly dismissed or been left with no option but to resign as a result of intolerable treatment by your employer? Have you ever been the victim of sex and/or race discrimination whilst at work? Well, thanks to the Coalition Government’s new measure, unless you can afford to pay £1200, you will have absolutely no redress against your employers appalling behaviour. Worse still, it used to be the case that in order to be eligible to bring an unfair dismissal claim, an employee simply had to have had 1 year’s continuous service with their employer. Now, thanks to the Coalition Government, that has been increased to 2 years. What that means is that when you start a new job, your new employer can more or less get away with bullying and harassing you for the first 2 years of your employment without any effective comeback, as you have no redress in the Employment Tribunal. Where is the justice in that?

The Employment Appeal Tribunal (EAT) clarified the position on whether employees have a right to have legal representation in internal disciplinary hearings in the recent case of Ministry of Justice v Parry (2012). It held that where the decision to dismiss creates a legal barrier to the employee working in their own profession, then Article 6 of the European Convention on Human Rights (ECHR), the right to a fair trial, is engaged. Once Article 6 applies, then the employee is entitled to legal representation in the internal disciplinary hearing. Nevertheless, the EAT also held that there needed to be sufficient evidence to establish that there was a link between the two (i.e. the decision to dismiss and the legal barrier to working in the profession). In the case itself, the EAT held that there was not enough evidence to establish whether Article 6 applied and referred the matter back for a new Tribunal hearing of the case.

Two of the most recent key developments in employment law in recent months relate to age discrimination and the proposed introduction of fees in the Employment Tribunal in 2013.

Firstly, the Supreme Court recently handed down its decision in the case of Seldon v Clarkson Wright and Jakes (2012). In this case, the Court dismissed the Claimant’s appeal in relation to his compulsory retirement. Whilst having a retirement age remains discriminatory, the Court reiterated that it is permitted where it constitutes a proportionate means of attaining a legitimate aim (such as staff retention, workforce planning, and avoiding performance management). Nevertheless, whilst the Court confirmed, therefore, that the pursuit of legitimate aims can encompass a retirement age in such circumstances, it refused to specify a particular age. Hence, there remains great uncertainty surrounding what specific age can be justified.

On Friday 13^th July 2012, the Government announced that fees for using the Employment Tribunal service would be introduced with effect from the summer of 2013. For simpler cases such as unlawful deductions in wages, a Claimant will have to pay an issue fee of £160.00. Should the case go to a hearing, then they will also have to pay a further £230.00. In terms of more complex cases, such as unfair or constructive dismissal, or a discrimination case, Claimant’s will have to pay a higher issue fee of £250.00. Should the case go to a hearing, then the Claimant will need to pay a further £950.00. Hence, for a Claimant who has just been unfairly dismissed and rendered unemployed, they could potentially be having to pay £1,200.00 simply to obtain justice 

The proposals to introduce Employment Tribunal fees have been the subject of a storm of criticism. TUC General Secretary, Brendon Barber, for example, stated: "It is vital that working people have fair access to justice, but introducing fees for tribunals will deter many - particularly those on low wages - from taking valid claims to court. Many of the UK's most vulnerable workers will simply be priced out of justice…..workers will be more likely to be mistreated at work as rogue bosses will be able to flout the law without fear of sanction." Dave Prentice, General Secretary of Unison, added: "This is a disgraceful move that tips the scales of justice heavily towards employers, and denies legal redress to those who do not have the cash to pay for it. Because we do not have class actions in this country, Unison has been involved in lodging equal pay claims for hundreds and thousands of women. If those women did not have union backing, and had to pay up front for access to justice, many would have lost out."