Employment Tribunal Fees – A Scottish Perspective

Published byJohn Grant

18th September 2015

Change is coming to the cost of bringing an Employment Tribunal claim in Scotland.

Fees were introduced into the Employment Tribunal and the Employment Appeal Tribunal in July 2013, meaning that Claimants had to pay money before they could bring a claim against their Employer.   

The UK Government's intention when introducing the charges was to try to cut the number of supposedly spurious claims which were being brought in the expectation that employers would settle them on the grounds of exposure to costs.  The amount of fees to be payable depends on the nature of the claim and whether it proceeds to a full hearing.  

In August 2015, however, Unison, the public sector trade union, challenged the introduction of these fees in the Court of Appeal (having been unsuccessful previously). 

Unison presented three grounds of challenge:-

1. Breach of the principle of effectiveness.  This was an argument that claimants who cannot afford to meet fees are being denied access to justice.  However, the Court of Appeal rejected this argument on the grounds that no evidence had been presented as to the number of employees who could potentially be affected.
2. Indirect discrimination on the basis that the fact that there were higher fees for discrimination claims meant that this was discriminatory against people with protected characteristics.  Again, this was rejected on the basis of lack of evidence.
3. A breach of the Public Sector Equality Duty on the basis that regard should have been given to the need to eliminate discrimination.  Again, this argument was rejected on the basis that there was a failure to assess whether the introduction of fees actually adversely affected the elimination of discrimination.  

In light of all of the above, and while acknowledging that there had been a “startling” drop in the number of Tribunal claims, these arguments were rejected and the fees stood. 

However, the position may now become different between Scotland and the rest of the United Kingdom, because in September 2015, the First Minister confirmed the Scottish Government’s intention to abolish fees for Employment Tribunals.  It is not clear when this may take place given that it requires the passing of the Scotland Bill (which is currently proceeding through Westminster) before Tribunal rulemaking powers are devolved to Holyrood. Of course, the Scottish Elections in May 2016 might also get in the way.    

In the meantime, while the UK Ministry of Justice have launched their own review, it is not anticipated that this would lead to the complete abolition of fees across the United Kingdom.  If the Scottish repeal is made, therefore, this could lead to the prospect of employees who work for a company that is UK-wide, choosing to try and put their applications before the Scottish Employment Tribunal rather than those of England or Wales on the basis that they can do so without having to pay fees.  It may well be that this causes resentment amongst employees in England and Wales who may perceive that they are being given a raw deal.  

We'll provide further information as soon as the position becomes clearer, but if you have any questions in the meantime then please contact a member of our Employment team.