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Scottish government to scrap employment tribunal fees

Scotland's new powers may create a two-tier justice system for workers in the UK

3 September 2015

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The Scottish government has pledged to scrap the controversial employment tribunal fees under new powers conferred on it in the Scotland Bill.

The first minister, Nicola Sturgeon, has outlined plans to abolish the fees, which many employment lawyers and campaigners claim have denied employees access to justice since their introduction in 2013.

The Programme for Government document, published this week, states: 'We will abolish fees for employment tribunals when we are clear on how the transfer of powers and responsibilities will work.

'We will consult on the shape of services that can best support people's access to employment justice as part of the transfer of the powers for Employment Tribunals to Scotland.'

The tribunal fees have been hugely controversial to employment practitioners both north and south of the border. Statistics from the Ministry of Justice (MoJ) show that employment tribunal claims fell by over 60 per cent in the two years since the charges were introduced.

In 2012/13, the Employment Tribunal received on average 48,000 new claims per quarter, which declined to an average of 26,500 in 2013/14. Specifically, the number of new claims in the first quarter of 2013 - when there were no fees - totalled 14,843. The number of claims in the first quarter of 2015 totalled just 4,876.

Further, the average number of new claims per quarter in 2014/15 was just 15,300, demonstrating a further decline in volume over the financial year.

In some areas there has been an even more dramatic drop in claims. There has been, for example, an 83 per cent drop in sexual discrimination claims and a 77 per cent drop in claims relating to equal pay.

Despite these damning figures, the Court of Appeal recently held it could not be inferred that the drop in the number of claims was exclusively due to workers being unable to afford fees.

The Lord Chancellor, Michael Gove, has promised a review of the fees to consider how effective their introduction has been in reducing frivolous claims while also maintaining access to justice.

In July, the Law Society's president, Jonathan Smithers, said: 'The £1,200 that a claimant must now pay for most types of cases is close to the average monthly salary, putting a tribunal well beyond the reach of many people, particularly those on lower incomes.'

Kevin Poulter, SJ's editor at large and legal director at Bircham Dyson Bell, suggested that Scotland's decision to scrap the fees will be welcomed by north of the border and watched closely by practitioners across the UK.

'If the change brings about a revival in unfounded, malicious and spurious claims, the powers that be in England and Wales will use this to back the policy more vociferously. If, on the other hand, Scotland finds that there is a resurgence in claims of discrimination (an area which has taken a significant hit since the fees were introduced) and small (but no less valid) claims from employees, it may provide some further evidence to the unions who are fighting the fees hardest and most vocally.

'With Unison currently seeking leave to appeal to the Supreme Court, the experience may prove to be persuasive, if not guarantee an complete about turn,' he added.

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Tribunals & Courts Courts & Judiciary