Last week the First Minister of Scotland set out the government’s legislative programme for 2015/16 which included the intention to abolish fees for employment tribunals.
The background to this is the Scotland Bill, currently making its way through the Westminster parliament, which provides for tribunal rule-making powers to be devolved to Holyrood. Although the Scottish government cannot abolish employment tribunal fees until the Scotland Bill becomes law, it has unequivocally expressed its intention to do so as soon as it can.
The introduction of tribunal fees in 2013 dramatically reduced the volume of tribunal claims and raised concerns about access to justice. The proposed abolition, once implemented, will inevitably reverse this trend.
However, it also raises the prospect of ‘forum shopping’ with employees linked to Scotland – for example by working here or whose employer resides or carries on business in Scotland - choosing to bring claims here rather than in England or Wales where their employer may have its primary business.
With the Scotland Bill not yet law, abolition may yet be years off. We will provide an update as soon as firm dates become available.
UK update – Tribunal fees are here to stay following Unison’s appeal being dismissed
UK wide, tribunal fees will remain in place for the time being as the Court of Appeal has dismissed Unison's appeals against its judicial review applications challenging the legality of tribunal fees.
Whilst “troubled” by the sharp decline in employment tribunal claims, Judge Underhill held that actual evidence will be required to support any assertion that fees are acting as a barrier for some in accessing justice, commenting:
“…the case based on the overall decline in claims cannot succeed by itself. It needs to be accompanied by evidence of the actual affordability of the fees in the financial circumstances of (typical) individuals. Only evidence of this character will enable the Court to reach a reliable conclusion that that the fees payable under the Order will indeed be realistically unaffordable in some cases.”
Meanwhile the UK Ministry of Justice has launched a review of employment tribunal fees to consider the impact of fees, including the effect on access to justice and to make recommendations for changes if required. These may include alterations to the structure or level of fees. The review is due to be completed by the end of 2015.
