Dear Minister,
Introducing fees in the Employment Tribunals and the Employment Appeal Tribunal Consultation
I am writing regarding the proposal to introduce fees in the Employment Tribunal and the Employment Appeal Tribunal and the impact this may have on people with certain protected characteristics.
The Equality and Human Rights Commission is Britain’s independent equality regulator and a UN-recognised ‘A’ status National Human Rights Institution. We have a mandate to challenge discrimination and to promote and protect equality and human rights across a broad range of policy areas.
The right to bring civil court proceedings is universally recognized as a key cornerstone of the rule of law. Access to justice is protected by the common law, Article 6 of the European Convention on Human Rights (ECHR) as well as UN human rights treaties including the Convention on the Rights of Persons with Disabilities (CRPD) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Article 6 of the ECHR sets out the right to a fair trial, including the protection of access to justice in the determination of civil rights and obligations. The legal framework in these jurisdictions does not preclude the use of court fees and we are not hostile in principle to their being used. However, the leading case of R (on the application of UNISON) v Lord Chancellor 2017 made it clear that a fees regime may be unlawful under the common law if there is a real risk that persons will effectively be prevented from having access to justice. European Court of Human Rights (ECtHR) jurisprudence has established that the use of fees should not impair the rights of to have a ‘clear, practical and effective opportunity’ to go to court. Furthermore, a greater justification is required if court fees are imposed at an initial stage of the proceedings. Any interference must be proportionate and not impair the essence of the right.
Following the introduction of fees in 2013, the Government’s review in 2017 found there was a sharp decline in the number of claims taken to and Employment Tribunal. These figures strongly suggest that the introduction of ET fees has impaired the very essence of the right to an effective remedy, particularly in some areas of discrimination and low value or nil value claims. We are concerned that the re-introduction of fees may give rise to a similar decline in claims.
Having reviewed the consultation proposals, we have identified two things the Department should do to mitigate the risk of disproportionate impact on people with protected characteristics and interference with fundamental rights.
Data on Protected Characteristics
As you are aware, the Ministry of Justice is subject to the Public Sector Equality Duty (PSED) under the Equality Act 2010 and is required to have due regard to the need to eliminate unlawful discrimination and harassment, advance equality of opportunity, and foster good relations in the exercise of its functions, including at all stages of policy development.
Your equality impact assessment (EIA) acknowledges the limitations of the available data on the protected characteristics of Employment Tribunal claimants. This makes it difficult to understand fully the potential impact of fees on people with protected characteristics. The disparate impact of the fee regime on women was one of the reasons why the Supreme Court ruled that the previous fee regime was unlawful. It also does not consider the impact the introduction of fees would have on certain groups such as women or ethnic minorities, who are over-represented in part time and/or low paid work and may lack the financial wherewithal to bring a claim to the tribunal.
The PSED requires that the Department collect sufficient and robust equality information to inform policy making. If there is insufficient statistical data on the protected characteristics of Employment Tribunal claimants, then other forms of data should be gathered, for example by engaging with people or representative groups likely to be affected by your policy proposal. This should be done prior to taking any decision on the matter.
Consideration must be given to the potential impact the policy could have on groups of people who may be small in number, but for whom the impact of the policy may be particularly severe, such as young women on maternity leave. You should also give thought to the combined effect the policy may have when considered alongside other relevant policies on people with particular protected characteristics.
As compliance with the PSED is an ongoing obligation, should you decide to go ahead and implement this policy, you must monitor its actual impact on people with protected characteristics. Working with HMCTS to improve the quality of data collection will enable you to do so, along with drawing on additional sources of information and data.
Help with Fees Scheme
We note that the Department proposes to extend access to the Help with Fees Scheme so that people on lower incomes or those facing financial constraints can take a claim to the employment tribunal. We welcome recognition that the introduction of fees may create a barrier to justice and recognise that the current scheme has recently been revised following consultation in 2023 to increase access to financial assistance for those who need it.
It will be important to monitor and evaluate the effectiveness of this scheme in achieving the aim of removing financial barriers to accessing the Employment Tribunal.
In summary, we recommend you prioritise improving the available data on Employment Tribunal users and monitor the impact of revised Help with Fees scheme. Ideally this would happen before moving ahead with the proposed changes. However, whenever the changes are implemented, it will be important to prioritise this work so as to ensure you remain compliant with your PSED obligations and avoid the risks of disproportionate impact on people with protected characteristics and of interference with fundamental rights identified above.
If you would like to discuss these issues with us in more detail please do let me know.
Yours sincerely,
John Kirkpatrick
Deputy Chief Executive Officer
Equality and Human Rights Commission
