The new fees in the Employment Tribunal come into force on the 29th July 2013, gone will be the days of access to justice for all. Access will come with a price tag, subject of course to the possibility of a fee remission, which I hope will work well in practice to avoid those with good cases having no access to the system.
It is worth a little refresher on the fees themselves since the proposals changed under consultation. The Claimant will have to pay an upfront fee to bring a claim (issue fee) and a further hearing fee should the claim progress to that stage. If the claim falls within level 1 then the issue fee will be £160 with a further £230 payable as a hearing fee. Level 1 claims are generally sums due on termination of employment such as unpaid wages, notice payments and redundancy payments. If the claim falls within level 2 then the issue fee will be £250 with a hearing fee of £950. Level 2 claims include unfair dismissal, discrimination and equal pay claims. The fees are set at a flat rate irrespective of the amount of money owed or the value of the claim. Those who are eligible can claim remission of the fees in a similar way to the scheme already in place in the County Court.
The new Tribunal rules have of course content to deal with the payment of fees at different stages. Perhaps the most interesting rule is that a claim shall be rejected without a tribunal fee or remission application. There is no judicial discretion. I anticipate that this will cause satellite litigation in cases where the time limits are close to expiry. A Claimant gets a second chance if they pay a tribunal fee but a lower amount than they need to or a remission application is later rejected. In these cases, the Tribunal will send a notice telling the Claimant that they must pay the full fee or the balance by a specified date, failing which the claim will be rejected. The rules are not clear whether they are triggered by payment of any amount or just the wrong fee for the specific claim but one of the above fees nevertheless. Again, we can expect some litigation on this issue unless guidance is issued.
Respondents are not immune from fees and will need to pay these for some applications and judicial mediation. I have already set out the proposed increase in judicial mediation within the system but like all things there is a price to be paid. However, the rules on non-compliance for employers are softer as they automatically get a second bite of the cherry. Interestingly, a Tribunal can also impose financial penalties on employers for breaching employees’ rights where there are aggravating features. Claimants do not get this added to their award however, the money goes to the Secretary of State so that could be another little earner for the Government.
I await with great interest the Tribunal statistics next year to see if the introduction of fees does have an impact on the number of claims brought in the last quarter of this year. So watch this space…