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Supreme Court says ET fees are unlawful

When employment tribunals (then “industrial tribunals”) were set up, access to them was free. If you wanted to bring a claim, you sent in a form, the tribunal heard the case, and in due course it told you whether you had won or lost, and if you had won, how much your employer would have to pay you. If you represented yourself, the whole process didn’t need to cost you anything more than your bus fare to the tribunal and a certain amount of postage.

That all changed in 2013. From 29 July 2013, if you wanted to bring a tribunal claim you had to pay two fees: one for starting the claim, and a second larger fee for the hearing. The total you’d have to pay depended on the type of claim: mostly for the simplest cases, you’d have to find £390; and for more complicated claims (including all unfair dismissal and discrimination cases), you’d have to pay £1,200. If your employer had underpaid you by a few hundred pounds, you’d be daft to gamble £390 (even if you had it) on getting it back, even if you really needed the money. In fact, the more you needed a few hundred pounds, the more you wouldn’t be able to afford to risk wasting £390. And if you had a complaint about dismissal – well, one of the consequences of dismissal is that you’ve just lost your income, so it wasn’t a good time to have to find £1,200.

As the government no doubt intended, employment tribunal claims plummeted: people who had claims against their employers didn’t bring them to the employment tribunals, because they couldn’t afford to.

The trade union Unison challenged the fees regime in the High Court, arguing that it amounted to an unlawful interference with access to justice. The challenge failed in the High Court and the Court of Appeal, but yesterday the Supreme Court ruled that the regime was unlawful. All the fees that employment tribunal claimants have paid for bringing their cases since 2013 will have to be repaid.

This is good news if you’re thinking of bringing a claim now, or if you have brought a claim in the past and paid a fee. Depending on individual circumstances, it may also be good news if you wanted to bring a claim, but were deterred by the fees; or if you had your claim rejected for non-payment of fees.

People who are thinking of bringing a claim now

If you’re thinking of bringing a claim now, it’s pretty straightforward: you don’t have to pay a fee. NOTE: THE ONLINE SYSTEM IS NOW BACK UP AND CLAIMS CAN BE LODGED — https://www.gov.uk/employment-tribunals/make-a-claim. The system was unavailable for a short period following the judgment while the requirement to pay a fee was removed.

 

People who have brought claims and paid fees since 29 July 2013

If you’re in this category, you should get your money back. It’s not yet been announced what the arrangements for repayment will be. I’ll post again here once the situation is clear.

People who have had their claims rejected for non-payment of fees

If you’re in this category, and you would like to try to pursue your claim, you should write to the tribunal asking it to list your case for hearing. The fee you were asked for should never have been charged, and the rejection was therefore unlawful.

You could write something like this:

Dear Madam/Sir

[Your name] v [your employer’s name]: claim rejected for non-payment of fee 

I enclose a copy of my ET1 form presented on [date], and the notification dated [date] that it was rejected for non-payment of a fee.

It has now been established by the of the Supreme Court in Unison v the Lord Chancellor that the fees charged were unlawful. It follows that my claim should not have been rejected. Please accept it now, and let me know what arrangements will be made for hearing it.

Yours faithfully

 

 

People who wanted to bring a claim, but couldn’t afford to, and are now out of time

If you were deterred from bringing a claim by fees, you may now be able to bring a late claim.

There are likely to be quite a lot of cases in this category. It’s not yet clear what will happen to them. Probably some will succeed, and some will fail.

Broadly, there are two kinds of situation in which you can bring a late claim. You can bring a discrimination claim outside the usual 3 month time limit (or 3 months plus the early conciliation period) if the tribunal decides it is just and equitable to hear your claim, even though it is late. Most other claims can only be brought late if you can show that it was “not reasonably practicable” for them to be brought in time.

The tribunals (and probably the EAT and the Court of Appeal) will now have to decide how to apply those rules in cases where potential claimants were deterred by unlawful tribunal fees from bringing their claims. If you want to try to bring a claim out of time for this reason, you should get your claim in as soon as possible now, and explain (probably in box 15 – ‘additional information’) – why the fees deterred you. If you haven’t already been through early conciliation, do that straight away, and put your claim in as soon as you have your early conciliation certificate.

Note of caution

Do think carefully about whether bringing a claim is the best thing for you to do. Just because you can now bring a claim without paying a fee, it doesn’t mean there are no costs: the emotional costs of bringing an employment tribunal claim are usually high. If you read the comments on this post, it will give you an idea of how distressing and futile some people find the experience.

 

 

 

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What do I do if my employer won’t tell me where to serve my ET1?

Don’t worry. You need to give your employer’s name and address in your ET1, and (if different) the address of the place you worked. If your employer is a company, you can find their registered office from the Companies House website. The employment tribunal will send the form to your employer, and tell them their deadline to respond.

If your employer ignores your ET1, that’s good news from your point of view: it means – unless they come up with a very good excuse – they won’t be allowed to take part in any hearing. You’ll get to tell your story, and there will be no-one there to contradict you or cross-examine you. It doesn’t necessarily follow that you will win your case – but it certainly makes life easier. You may even get a judgment in your favour without having to go to a hearing at all.

When you try to enforce your judgment, you may find that your employer suddenly wakes up and starts writing letters saying they never knew about your claim: the ET1 never arrived, or was sent to the wrong address or something. So it is quite important to get your employer’s address right in the first place. If you’re not completely sure about that, you could always send a copy of your ET1 to the place where you worked – possibly addressed to your former line manager – with a covering letter saying something like “This should have arrived at [the company’s registered office, or head office, or whatever you have given as your employer’s address] but just in case there is any difficulty I am sending a copy to you. Please make sure the appropriate people are aware of it.” That will make it very difficult for them to say later that they didn’t know anything about your claim.

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Make the judge decide

If you are representing a client (or yourself) in the employment tribunal – or any other court or tribunal, come to that – your job is to put your case to the best of your ability. The judge’s job is to decide on the outcome: that’s what they’re paid for.

Judges don’t always remember this. Sometimes you will come under considerable pressure to concede part of your case, or to agree that a view the judge expresses on the law at the beginning of the hearing is correct. Judges are supposed to be experts on the law, and lots are: but some aren’t, and even the best are wrong sometimes. So if the judge tries to get you to agree that he or she is right about some legal proposition that you’re worried about because it seems to make it harder for you to win, don’t assume you have to back down. You don’t: you are entitled to argue in favour of your case even if the judge thinks you are wrong.

There’s a tension, of course, between wanting to seem reasonable and stay on the judge’s good side, and wanting to pursue even those parts of your case that the judge has initial doubts about. You have to make a judgement about that: sometimes making some concessions is undoubtedly the right thing to do: see this previous post. But if the judge doesn’t seem to have a good side – or seems to have taken against you on sight – and you are convinced at an early stage that you are going to lose whatever you do, then you might as well stand your ground.

In particular, if you concede instead of making the judge do his or her job and make the decision, it will be more difficult to appeal even if the judge was wrong all along.

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Chronologies

In a case where there story is at all factually complicated – and quite likely, even if it isn’t – the tribunal will want a chronology. That means a list of the most important things that happened, with dates, in the order in which they happened. A simple chronology may just be a list of dates and events. Often the order in which things happened is extremely important to what inferences the tribunal will draw. Take a chronology that goes like this:

4/1/13 C started work

21/7/13 C announces pregnancy

22/7/13 C’s line-manager emails her a list of complaints about her latest assignment

28/7/13 C dismissed because ‘your work’s not good enough’

It’s pretty clear what’s happened there.

But change the order so that the email complaining about C’s work is on 21/7/13 and she announces her pregnancy the following day, and everything looks completely different. It might even be suggested (especially if she’s made the announcement very early in her pregnancy) that she has made the announcement when she has in order to make deter her employer from dismissing her.

It’s not usually as clear-cut as that, but often in the course of drafting a chronology you find that you notice some sequence of events that doesn’t quite fit with what one party or the other is saying.

I have 4 specific pieces of advice about chronologies, apart from the general observation that they are useful – both as a way of getting the sequence of events clear in your own head, and as a way of making your story clear to the tribunal.

1. Use a spreadsheet

Using a spreadsheet makes life easier because it doesn’t matter what order you put the events in – you can sort it into date order automatically periodically as you go through. That saves a lot of fiddly insertion of extra lines in a table.

2. Include page numbers

Part of the reason that chronologies are so useful is that bundles often aren’t properly in chronological order; mostly by accident, but sometimes even by design. If you have a bundle that isn’t in chronological order, it can be difficult to find any particular document, even if you know its date or approximate date, unless you know its exact page number. So for each event in your chronology that is closely associated with a document (e.g. the disciplinary hearing and the notes of the disciplinary hearing) or even is a document (e.g. the dismissal letter), include the page reference.

3. Use a spreadsheet intelligently

The facts will often have a number of separate strands: a formal disciplinary or capability process; various OH reports and consultations with the Claimant’s GP or specialist; a grievance process. Your chronology may be clearer if you separate out these strands into different columns, so for example you might have a ‘formal process’ column for disciplinary/capability hearings, invitations to hearings etc; a ‘sickness absence’ column for periods of sick leave; a ‘medical/OH’ column for OH referalls and reports and similar material; and so on.

4. Include blank lines

When you come to finalise and print your chronology so as to give it to the tribunal, you might want to add a blank line under each event so that if the ET members think there are other significant events that your chronology doesn’t record, they have space to add them.

See Workbook1 for an example of how the beginning of a chronology done this way might look.

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Unfairness

The Employment Rights Act says that employees have the right not to be unfairly dismissed, and whether or not an employer’s decision to dismiss was unfair is to be decided by the tribunal ‘in accordance with equity and the substantial merits of the case.’

You might think that that meant an employment tribunal had to decide whether they thought your employer had acted unfairly in dismissing you. You’d be wrong: over many years, judges have decided that what Parliament was really trying to say was that where an employer decides that a particular potential reason for dismissal is sufficient grounds to dismiss, the tribunal should only find that decision unfair if it was outside what has come to be known as a ‘range of reasonable responses’ open to the employer. Any time a tribunal actually decides for itself (as the Act seems to tell it to) whether a decision was fair or unfair, it gets firmly slapped down by the Employment Appeal Tribunal. Tribunals are constantly told that they must not ‘substitute their own judgement’ for that of the employer as to whether or not dismissal was appropriate; they must confine themselves to deciding whether the decision to dismiss was within the band of reasonable responses. This makes winning unfair dismissal cases – especially where you’ve done something wrong, but your employer has overreacted by dismissing you – pretty difficult.

Given that background, the judgment of the Court of Appeal in Robert Newbound v Thames Water Utilities provides a little bit of comfort. It doesn’t disturb the received wisdom, but it does at least emphasise that if it’s not for the ET to substitute its judgement on the merits of dismissal, it’s not, either, for the EAT to substitute its judgement for that of the ET.

Mr Newbound had (ironically) relied on his own judgement about whether it was safe to enter a sewer without breathing equipment. The employer had recently introduced new health and safety practices, under which he had signed a form indicating that he knew he was required to use breathing equipment for this particular task. He hadn’t read the form properly, of course, and didn’t realise that under the new regime he was likely to be disciplined for making his own judgement about safety. The tribunal had found his dismissal unfair. The EAT said that was ‘substituting its judgment’ for that of the employer. The Court of Appeal said there was no error of law in the ET’s approach, and restored its decision.

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Criticise specifically

A great deal of tribunal advocacy, especially on behalf of claimants, involves criticising the behaviour of someone else (normally the employer).

For example, in an unfair dismissal claim one might be arguing that the procedure used to dismiss somebody was unfair or that dismissal was not a reasonable response in the circumstances.

Criticism should always be specific rather than general.

Why is the procedure unfair? If it’s because the employee wasn’t told about the allegations before the disciplinary meeting, say that. ‘Mr Smith did not know anything of the case against him before the meeting on the 2nd February. Not only had he not been given the evidence on which Acme Ltd relied, he had not even been told he was being accused of the theft.’ is much more convincing than ‘The Respondent didn’t follow a fair procedure’.

If you can’t identify specifics, then seriously consider whether the criticism can be made to stick. I see this frequently with criticism of investigations. It’s always easy to say ‘The employer should have done more to investigate’. But unless you can identify some specific steps that they should have taken, a tribunal is unlikely to be convinced.

A similar principle applies in relation to giving evidence of things like harassment. Saying ‘My manager bullied me’ isn’t particularly helpful. It’s just applying a label to your manager’s behaviour. You need to be specific: ‘On 24th December my manager came into my office and started shouting at me. He said that I wasn’t working hard enough and that I was a disgrace to the company. He kept shouting for about five minutes, accusing me of being ‘a bloody lazy sod who wants something for nothing, before storming out and slamming the door’. At this point you might say ‘I felt bullied by his behaviour’, but it’s really unnecessary.

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Please help me run 26.2 miles on Sunday

If only that was literary possible. It would be great to be propelled around the London Marathon course by the good wishes of hundreds of Employment Tribunal Claims readers (not to mention it would undoubtedly improve my time).

But, even though it isn’t literally possible, it is figuratively possible. I’ll be running the marathon on behalf of the Free Representation Unit, where I work as Legal Officer, Employment. Since 1972, FRU has done what is says on the tin: provide representation in tribunals for people who can’t afford lawyers. We do this by working with law students, thereby providing them with invaluable experience. It’s a win-win for everyone involved, but particularly for the 500 or so client who we help every year.

To do this, however, we do need a lot of support from other people, including financial support. And, basically, the marathon is a good excuse to ask (I also like to think you might be moved by my impending discomfort). Every little helps — if every reader of the blog donated 50p, I’d smash my fundraising target.

If you would like to contribute, you can do so through justgiving at: https://www.justgiving.com/reed2015

Also, if you’d like to leave an encouraging comment here, please do so!

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A historic date: Cross-Party Consensus on Employment Tribunal Fees

“I’m a big fan of John Maynard Keynes,” said David Cameron at his surprise announcement about Employment Tribunal Reforms with Nick Clegg, Ed Miliband and Nigel Farage. He said ‘When the facts change, I change my mind. What do you do, sir?’ It’s clear that our policy on Employment Tribunal Fees was a bit of a wrong turn. We all thought there’d be a modest decrease in claims, mostly the weak or vexatious ones, and hard working people who had decent claims would be perfectly happy to rummage down the back of the sofa for £1,200, or borrow from relatives, or maybe do a little part-time prostitution or drug-dealing. But once my advisers showed me the Dunstan Graph I realised we’d got it wrong.”

“Now, I know we’re going into an election, but not everything has to be party political. We’re all on the side of hard working families and we all think that British Business deserves a level playing field where good employers don’t have to worry about unfair competition from rogue businesses who are breaking the law. None of us are in favour of people who break the law (unless they’re our mates, and very wealthy).”

“That’s why I’m delighted to announce that, whatever party wins the election, we intend to repeal Employment Tribunal Fees immediately. It’s just the right thing to do.”

Ed Miliband agreed: “The Labour Party was founded to represent workers, and we’re true to our roots. That’s why we’re determined to make sure workers can access their rights. Tribunal fees prevent people getting access to justice so they’ve got to go. Frankly, the worst possible thing for us to do at the moment would be to focus on meaningless changes to the law that can’t be practically enforced, glib soundbites or hate-mongering against the powerless. There’s a crisis here and it would be real betrayal of the Labour Movement for us to fail to meet it head on.”

Nick Clegg, answering questions about the previously mooted review of Employment Tribunals answered impatiently, “You need a review when it’s not clear what’s going, on or you’re not sure what to do about it. This isn’t like that. We introduced fees, and claims fell off a cliff. I don’t think anyone who knows anything about the situation thinks there’s any other reason for the decline in cases. We got it wrong, but we’re going to fix it.” Asked whether it was possible that ACAS Early Conciliation had anything to do with the decline in case numbers, he refused to answer, saying ‘I’m going to assume that’s a joke. Have you looked at the statistics?’

Nigel Farage said, “UKIP supports this reform. The working man needs access to employment tribunals, in particular to combat the terrible social problem that is discrimination against white middle-aged men who like beer. That’s Intersectionality.”

David Cameron had the last word: “This announcement is about the Employment Tribunal Fees specifically. But, to be totally honest with you, I’m worried about what’s been going on in the Ministry of Justice for this to have gone uncorrected. I’ll be checking that we haven’t done anything else that might have caused serious damage to access to justice.”

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Ticking the boxes

The ET rules require an application to the tribunal (the ET1 form) to be ‘accompanied’ by a fee or an application for remission; but the online claim mechanism doesn’t provide any method of applying for remission at the same time – you have to send the remission application by post.

We noted in the 4th edition of ET Claims that this was a bit of a puzzle, and recommended posting the remission application the same day if possible – but in any event making sure it arrives within 7 days of the online claim.

This point was considered by the EAT In Deangate Ltd v Hatley (thanks to Daniel Barnett, as ever for the alert). Three claimants presented their claims online on the 2nd last day before the time limit expired. They hadn’t sent applications for remission with their claims – because there was no way for them to do so. But they had ticked the box saying they intended to apply for remission, and their applications were received within 7 days.

The Respondent tried arguing that the claims should be rejected because they weren’t ‘accompanied’ by the fee. Sensibly, the EAT was having none of it: ticking the ‘yes’ box counted as an application in the circumstances, even if an incomplete one; and it was reasonable to allow the claimants a further 7 days to complete their application

So our advice stands: send your remission application on the same day if at all possible, but in any event make sure it arrives within 7 days of your online ET1. If you leave it 8 days, the Respondent may well try this argument again – and might win it this time.

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Hold fast to your ET1

Your ET1 is the form you complete to start your claim — also known as the claim form.

It’s a vitally important document and it’s important you make sure you keep a copy of it. If you’re submitting online, you can do this by saving it to PDF when submit it electronically. If you post it, you’ll need to take a photocopy.

This all sounds very obvious, but I’m encountered a surprising number of cases where people have sent off their ET1, without holding onto a copy. I suspect the problem is that the wider world of the internet has taught us all that we’re bound to receive a confirmation email with the form attached. Unfortunately you don’t.

If you don’t keep a copy, contact the tribunal and ask for one.

On no account try to reproduce your original ET1 by filling it in again from memory. This will a) not work (you’ll never remember it exactly) and b) risks looking as if you’re trying to pull a fast one somehow.