The House of Commons Justice Committee heard evidence this week from Richard Heaton, Permanent Secretary at the Ministry of Justice (MoJ), on the subject of the Ministry of Justice Annual Report and Accounts 2017–18.

Watching the interview on parliamentlive.tv, Mr Heaton can be seen describing how the budgets have been squeezed since 2010 as his is one of Whitehall’s unprotected departments.

He answered questions on subjects such as preparations for Brexit and prisons but of more interest to employers are Mr Heaton’s answers on fees.

He agreed that the department relied on fee income as a major income stream but said that it must also ensure access to justice, acknowledging the Supreme Court ruling that the balance has not previously been met.

We are not seeking to squeeze as much money as we can out of every litigant, he said, and must take account of those who cannot afford fees.

Mr Heaton was questioned about the repayment of fees, and his department was using all reasonable steps to reach people who were entitled to a refund.

On the point of the Supreme Court ruling, he pointed out that the judgment did not completely outlaw the principle of fees.

“We have taken time over this,” he said. “We have to get the fee level and the rebate scheme right. I can see a fee scheme working that is both progressive and allows people out of paying fees where they can’t afford to. We are still working on this.”

There are, Mr Heaton confirmed, no immediate plans to reintroduce a fee scheme.

Comment by James Potts, Associate Director of Legal at Peninsula

While optimistic employers may be encouraged by the notion of a return of tribunal fees, they could find themselves facing a long wait before any changes are made to the current system, particularly given the MoJ’s admission that there are no immediate plans to reintroduce tribunal fees at this time.

Figures show that since the removal of fees in July 2017, the number of claims brought to tribunal have continued to grow month-on-month, with the latest statistics from Acas revealing that over 30,000 employees began proceedings to make a claim against their employer in the period from April to June 2018.

Any new scheme will not be welcomed by employees or trade unions who will be keen to assess whether its fee levels may still be considered a block to justice, or discriminatory: both of which were the reasons given for the finding that the original scheme was unlawful.

Rather than rely on the chance that tribunal fees will return, employers who find themselves facing claims should carefully review their existing business practices and corporate culture, addressing any areas of concern which should allow them to pre-emptively avoid tribunal proceedings.

Last reviewed 14 November 2018