Distracted by referendum fever, most people will have missed a stinging report from the House of Commons Justice Committee on the impact of Tribunal fees on access to justice. Looking at the 70% drop off in Tribunal claims; dismissing Government arguments including the effect of ACAS early conciliation as "even on the most favourable construction, superficial"; and rebuking the Ministry of Justice for suppressing information which is most likely unfavourable to them, the Committee concluded that:
"the regime of employment tribunal fees has had a significant adverse impact on access to justice for meritorious claims."
What is becoming evidentially clear but was always blindingly obvious is that the introduction of fees deters employees with good claims as well as bad and provides little incentive for employers to settle early. The Committee makes various recommendations including the immediate publication of the factual data the Ministry of Justice has collated but not so far released and a substantial reduction in the fees charged. They conclude that even though this might be a cost for the Ministry " …if there were to be a binary choice between income from fees and preservation of access to justice, the latter must prevail as a matter of broader public policy."
One final point is that the rationale for the fee regime was in part to deter vexatious litigants. Our colleague, Neil Johnston, has gone some way to answering that point outside of any perceived need for fees by establishing in Nursing and Midwifery Council v Harrold that Respondents to Employment Tribunal claims can obtain High Court Civil Restraint Orders against vexatious litigants which are binding on Employment Tribunal litigation.