Tribunal fees: They’re nearly here… (or perhaps not)

The Government has produced its draft statutory instrument available here to introduce fees in the Tribunals and the EAT.

Why?

The Government’s aim is to ‘encourage businesses and workers to mediate or settle a dispute rather than go to a full hearing’ and therefore lower the cost of the Tribunal system to the taxpayer. The Tribunals Service is also very short of cash and this will be an excellent revenue raiser, we suggest!

What?

The fee levels are the same as those contained in the Government’s response to its consultation published last July 2012 (we covered this in our Newsflash of 3 August 2012, Fees coming soon to a Tribunal near you…). However, some of the other detail has changed.

In summary:

There will be two levels of claim:

• ‘type A claims’ (previously referred to as level 1 claims): issue fee is £160 and the hearing fee is £230.
• ‘type B claims’ (previously referred to as level 2 claims): issue fee is £250 and the hearing fee is £950.

The ‘issue’ fee in each case is payable, unsurprisingly, at the time of the issue of the claim. The online ET1 form will be updated to include a payment button. If the employee is on benefits or low income and wishes to apply for fees remission, there will be an option to choose that instead of paying. The ‘hearing fee’ is payable on a date that will be set out in the Tribunal’s letter that notifies the parties of the hearing date (which does not deal with the question of whether it falls due shortly after the hearing date is set, or a certain number of weeks before the hearing – they could be months apart).

Whether a claim attracts type A or B fees will depend on the type of claim. Type A claims include unlawful deduction from wages, holiday pay, and redundancy payment claims. Type B claims include discrimination, equal pay and unfair dismissal claims (i.e. those that are likely to be more complex and take more time to determine). There is a separate fee structure for multiple claims (i.e. claims submitted jointly by more than one claimant).

There are several other fees too. For example, £60 for an application by an employer to dismiss a claim following settlement and £600 for judicial mediation.

Most types of fee will only apply to the claimant, but the Tribunal will have the discretionary power to order the unsuccessful party to reimburse the fee to the successful party. It is not yet clear whether this means it will become standard practice for employers who lose a case to have to reimburse to the claimant the fees that the claimant has paid. We suspect it might, in time.

For any appeals against Tribunal decisions that are submitted to the Employment Appeal Tribunal, the issue fee is £400 and the hearing fee is £1,200. Here, there is only one level of fee regardless of the type of claim or number of claimants.

The consequences of any non-payment of issue fees and hearing fees are that the claim will not be allowed to commence or continue in the Tribunal. Guidance will be given that the existing time limits for making a claim will not be extended just because a claimant requires more time to pay a fee.

We had thought that a Claimant on benefits or low income, who might qualify for a waiver (remission) of the fees would have to obtain approval of that remission before filing the claim, and therefore before the 3 month deadline for bringing an ET claim. However, the latest news from the Tribunals Service appears to be that the fees remission process will take weeks, or even months, to process and so to make the things workable an employee seeking a fees remission will be able to file an ET1 claim form without payment but they must at the same time file an application for fees remission. We do not know what will happen if their fees remission application is unsuccessful – perhaps they will be given 7 days in which to pay the fees or see their claim rejected. Apparently, the identical fees remission office for claims in the County and High Courts can take up to 6 months to process a fees remission application, so we may come to see claims suspended at the earliest stage whilst that process grinds slowly on. This cannot be a good thing for either side in the case.

Who?

Only claims lodged at the Tribunal or appeals to the EAT on or after the implementation date will attract fees.

When?

The official intention is for this to become law on a date at the end of July 2013. However, we understand that the Tribunals Service wishes the new fees rules to be brought into force at the same time as the other new ET rules of procedure, and those look as if they might not be finalised and ready for use until perhaps as long away as February 2014. So we will wait and see.

How?

Fees will be paid online or through a centralised processing centre. Claimants will not be able to pay fees in person at individual Tribunals.

Any more…?

The Ministry of Justice has also published a letter to stakeholders available here and Q&A available here, explaining how the rules will work in practice.