Tagged: ET1

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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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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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Applying for fee remission

Fees were payable for employment tribunal claims from 29 July 2013.

You may be eligible for ‘remission’ of the fee (that is to say, you may not have to pay it) if you are on benefits or a low income, and have very limited savings. If you pay the fee up front, you can still apply for remission provided you do so within 2 months. But if you’re eligible for remission, the chances are you can’t afford to pay the fee up front, so you will need to apply for remission when you present your claim.

Doing that is more difficult than it ought to be.

HM Courts & Tribunals Service guidance note T435 says `It is very important that you send your fee or application for a remission with your claim form.’ But if you present your claim online (which you’re strongly encouraged to do), you can’t: you are asked to say whether you intend to apply for remission, but there’s no option actually to make the application online with your claim form.

So what you have to do is find and print the relevant form and post it (together with supporting evidence) to the Employment Tribunal Central Office at PO Box 10218, Leicester LE1 8EG (or if you have access to DX, at DX 743093, Leicester 35).

At the right hand side of the page showing your online ET1 form, you will see a list of `other relevant links.’ One of them is called `How to apply for remission.’ You might think that would take you to some guidance about how to apply for remission. You’d be wrong. It takes you to a search page for HMC&TS forms and leaflets. The one you want is called `EX160A.’ It’s listed under `leaflets’ rather than `forms,’ but persevere – the leaflet includes the form. Amazingly, there are two versions of EX160A. You want the one marked ‘for Court and Tribunal fees payable from 7 October 2013.’

It’s not clear from any of the official guidance how soon after presenting your online claim you are supposed to send in your application for remission. Staff at the Employment Tribunal enquiry line think it has to arrive within 7 days of your online claim, but they can’t point to any rule or guidance that lays down that time limit. In any event, you should certainly assume that you need to send your form EX160C, with all its supporting documentation, very promptly after submitting your online ET1. Post your remission application the same day, if you possibly can.

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Interim relief (II)

If you think you’ve been dismissed for trade union activities, or whistle-blowing (or one of a short list of other specific reasons), you can ask a tribunal for an order preserving your employment with pay until your unfair dismissal case is heard. That’s called an application for interim relief. Interim relief applications are pretty rare, probably because you have to make the application within 7 days of dismissal. Most people just won’t find out about the existence of the right in time to try to exercise it.

There’s more about interim relief applications in general here. This post just adds a couple of practical points:

Certification

The right to ask for interim relief is created by rather complicated and partly overlapping statutory provisions. It’s easiest to think of the reasons for dismissal in two categories: ‘trade union related’ and ‘other.’ If your reason for dismissal wasn’t about trade union membership or activities, your claim will be brought under section 128 of the Employment Rights Act 1996. You have to move fast but there’s nothing very technical or difficult about setting up your claim: you present your ET1 as soon as possible (and preferably sooner) making it clear you want interim relief, and saying which of the section 128 reasons you’re relying on, and presently the tribunal should hear your application.

If your claim is about trade union activities, it’s a bit more complicated – and there’s a potential pit-fall. For some (though not all) union-related claims, the ET1 won’t be accepted unless it is accompanied by a certificate from an authorised official of the trade union stating that on the date of the dismissal you were or proposed to become a member of the union, and there appear to be reasonable grounds for supposing that the reason for your dismissal was the one you are complaining about.

So if your claim is about dismissal for something to do with trade union membership or activities, check carefully whether you are relying on one of the reasons that requires you to have this certification. If in doubt, get the certificate anyway: it won’t harm your claim if it turns out you don’t need it. And make sure the certificate says what it needs to say: it has to say you were or proposed to become a member of the union at the time of the dismissal – not at some other time. You may not be absolutely sure when the date of the dismissal was: if so, the simplest thing may just be to get the authorised representative to certify that you have been a member continuously from whenever you joined up to the date of the certificate.

If your facts give rise to potential claims both of the kind that do need certification, and of the kind that don’t, rely on both in the alternative. That way, even if there’s something wrong with your certificate, your claim may still be accepted.

Earnings & benefits

Because you have to present the ET1 in such a tearing hurry in these cases, it may be tempting to skip over some of the detailed bits of the form; in particular, it’s common for employees to fail to complete details of earnings and benefits. But if you get interim relief, the whole point is to make sure that your earnings and benefits from the employment continue as if you hadn’t been dismissed. The tribunal can’t order that unless it knows what your earnings and benefits were: so do make sure you complete boxes 4.2 and 4.5. of the ET1 form to the best of your ability. And if you don’t put that information in the form, make sure you have it before you go to tribunal.

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When can an employer make a counterclaim?

A counterclaim is a case brought by a Respondent as part of their reply to a claim.

So, for example, A sues B for unfair dismissal. B replies, denying the unfair dismissal, but also suing B for breach of contract. B’s breach of contract claim is a counterclaim.

Counterclaims are rare in employment tribunals, because the tribunal has a very limited jurisdiction to deal with them. The only type of counterclaim an employer can bring is a breach of contract claim (see s3 Employment Tribunals Act 1996 and reg4 Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994).

In addition, the employer can only bring a counterclaim if the employee has already brought a claim for breach of contract under the Extension of Jurisdiction Order (reg 4(d)).

This sometimes causes confusion, because there is a difference between bringing a breach of contract claim and relying on a breach of contract as part of the factual basis of another type of claim. For example, an unfair dismissal claim that rests on constructive dismissal will inevitably involve an allegation that the employer has committed a repudiatory breach of contract. But that does not make it a breach of contract claim — it remains an unfair dismissal claim (technically a statutory tort).

Similarly, most unlawful deduction of wages claims rely on proving that the employer breached a contractual term about pay, but they are not breach of contract claims (again, they are statutory torts).

This means that, if you suspect that your employer might present a counterclaim, you should think carefully about whether to bring your own breach of contract claim. In practice, the most common breach of contract claim is a wrongful dismissal claim for notice pay. Sometimes it will be well worth bringing such a claim, despite the counterclaim risk — either because the contract claim is valuable or because the risk of counterclaim is low. But it is worth thinking about the risk — and the extent to which the contract claim adds anything significant to any other claims you are bringing.

Unfortunately, once you’ve brought a breach of contract claim, the tribunal has jurisdiction to consider a counterclaim, even if your claim is dismissed or withdrawn. So you cannot counter a counterclaim with a canny withdrawal.

It’s also important to note that employers can sue their employees in the civil courts in the normal way. So avoiding a counterclaim doesn’t mean you avoid any risk of a claim against you. A separate claim, in a different jurisdiction, however, is far more labour intensive (and expensive) than a counterclaim. Many employers will not bother.

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How claims get created

You start with a set of facts that are capable of supporting a claim. For example, you did not get a promotion, because your employer is prejudiced against women. This is less favourable treatment because of your gender, which is the basis for a direct sex discrimination claim.

The tribunal claim is created at the point that you submit an ET1 containing the allegation of discrimination. Until this happens you have not brought a claim.

The only way of creating a claim is to include it in an ET1 (although this can be done by amending the ET1 later, if the tribunal gives permission).

This is important because without a claim in existence the tribunal cannot find in your favour. They cannot decide the claim at all; there is nothing to decide.

Put like this, it sounds obvious. But it is fairly common for people to try to rely on allegations in grievance letters, inter-parties correspondence or witness statements to found a claim. This does not work; if you want the tribunal to decide something, it must be in the ET1.

This does not mean, however, that every fact you want to mention in the tribunal must be in your ET1. The basis of your claim (i.e. that your manager is a male chauvinist who didn’t promote you) must be there, but you don’t need to include every patronising remark he made over the last two years. Much of that detailed material will be brought in at the witness statement stage.

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Keep it simple

Most employment tribunal claims are about dismissal (actual or constructive); and most of the compensation awarded in most claims reflects loss of income from the job.

If before the end of your employment, you were treated badly by your employer in a large number of different respects, it can be easy to lose sight of this. You want the tribunal to know the whole story. You want to tell them about (e.g.) the unfair decision to disallow your expenses claims, the unreasonable refusal to allow you to use the accounts photocopier, the stationery cupboard incident, the time you were left out when the birthday cake was distributed, the discourtesy of the manager who conducted your grievance hearing, the unfairness of the way the grievance appeal panel was selected, the employer’s obstructiveness in agreeing a date for the grievance hearing, the unreasonable insistence on conducting the hearing at Head Office, etc etc etc.

You may feel that all of these things are examples of discrimination against you, or your employer’s bad attitude to you. You may even be right.

But most of this will make no significant difference to how much money the tribunal orders your employer to pay you at the end of the case.

So if you really think the tribunal needs to hear about it to understand the story, put it all in your witness statement. But leave it out of your claim form and your list of issues.

Why? Why should you let your employer get away with even relatively minor wrongs?

There are two reasons. The first is that if you include everything, you will obscure the important points. You’ll risk making the tribunal think you are obsessed with trivia, so that by the time you get to the heart of your case you have lost their interest and sympathy.

(The truth is, being badly treated by your employer hurts a lot. Most people who have suffered this over a period lose perspective, and get a bit obsessive about it. But the tribunal doesn’t know you. So they can’t tell at a glance whether you’ve been treated badly because you’re obsessive and annoying – or you’re obsessive and annoying because you’ve been treated badly. So if you can keep an eye on the this tendency in yourself and restrain it, you’ll improve your chances.)

The second is that including everything will increase the duration of the hearing. This will certainly mean more wear and tear for you; and if you’re paying for legal representation, it will increase the costs. So when you’re tempted to claim for umpteen individual detriments, ask yourself this question: am I likely to get enough in additional compensation for injury to feelings for these incidents to make up for the cost of the extra hearing days? If the answer is no, trim your claim.

As a rule of thumb: if you’ve got a list of issues with more than about a dozen questions on it, think very hard about whether your case really needs to be so complicated. Most don’t.

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Guest post: Anne Redston

anne_redston

Completing your ET1

The ET1 is the form you complete when you begin your claim. It sets out the reasons you are complaining to the Tribunal. So in an unfair dismissal case, you must explain why you think your dismissal was unfair; in a discrimination claim, you must explain the incidents you believe amount to discrimination.

This seems straightforward enough. But there are two common mistakes. The first is to give too much detail, in an unstructured form, so that key facts get buried. This makes it difficult for the Tribunal to work out exactly what you say happened. In contrast the employer normally submits a carefully structured ET3, with legal help, which concentrates on the facts the employer thinks are important and presents them in the way most helpful to its case.

The Tribunal judges normally read the ET1 and ET3 just before they begin the case, but not very long before. In the short time available, they may be drawn to the employer’s comprehensible, coherent and legally persuasive account rather than your rambling 20 page ET1. And this is means you start the case on the back foot, having to convince the Tribunal that you have a good case.

The second risk is that you miss out important facts because you don’t realise that the Tribunal will want to know them. If you try and raise these facts later, the employer’s representative may suggest that you made them up, in order to strengthen your claim.

So, unless the issue is very straightforward – such as being racially abused by your boss – it is worth getting some legal help at this early stage if you can. There are various sources of free advice (see Getting Advice); or if you can afford it, you might want to pay an employment lawyer for a few hours’ work.

Anne is a visiting professor in law at King’s College, London, and a volunteer at FRU

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Drafting your claim

Your claim form will be one of the first things that the tribunal reads, so it is an important document. If the story you tell there is not complete, easy to follow, and convincing, you will start at a serious disadvantage. The main narrative part of the claim form that you fill in is box 5.1 for an unfair dismissal, box 6.2 for discrimination.

It is probably clearest if you divide the content of this into two main sections. Tell the story in the first part; pin on the legal labels in the second part.

1. Tell the story

Structure is important. It is much harder to follow (and therefore also to believe) a story that jumps around in time and where the reasons why things happened are not clear. Just write down the things that happened that form the basis of your claim, in the order in which they happened (that is to say, in ‘chronological’ order), and in numbered paragraphs.

You don’t need to go into huge detail here. The point of this document is to tell the tribunal what you say happened that gives you a right to compensation or some other remedy. You don’t have to tell them all about why they should believe your version of what happened: you will have a chance to do that later in your witness statement. Just tell them what happened. But you do need to tell them everything that you want to be compensated for: so don’t leave out anything that your employer did that you think was an act of discrimination, or a breach of contract, or in an unfair dismissal case, everything that was wrong with the way they went about making the decision to dismiss you.

At this stage, you don’t need to talk about the law at all. Don’t say ‘this was sex discrimination because… ‘ or ‘this was unfair because…’ – just write down the facts, in order.

Make sure the story doesn’t have any puzzling gaps in it. That is hard to do with a story that your own head is full of, so if possible, get someone else to read it and ask them if they understand what you say happened, and whether it leaves them wanting to ask ‘But why…?’ at any point.

2. Pin on the labels

Once you have finished telling the story, say what you want the tribunal to make of it. This is the moment to spell out what your claims are, in legal terms. It isn’t the place for legal argument – you don’t have to quote cases or recite bits of legislation – but you do need to explain whether you say the things that the respondent did amount to sex discrimination, or race discrimination, or disability discrimination, or unfair dismissal, or a breach of contract (and so on).

If you say you have suffered discrimination, you will almost certainly have to explain a bit more: you will need to say whether you think you have suffered direct discrimination (they treated you worse because of your sex, race etc.) or indirect discrimination (they applied a provision, criterion or practice to you that put you at a disadvantage compared to members of other groups, and they can’t justify it), or discrimination by way of victimisation (they treated you badly because you had raised other complaints of discrimination previously) – and so on.

This part can get quite complicated. Often you won’t know for sure which is the best way to put your claim. You may have to draft alternative claims – this was direct discrimination on grounds of sex, but if it wasn’t, it was indirect discrimination on grounds of sex; then again it may have been victimisation. But when you come to write this part, your task will be easier if you have set out the story clearly in numbered paragraphs first, because you will be able to refer back to those paragraphs and say things like ‘In doing the acts referred to at paragraphs x to y above, the Respondent treated the Claimant (or if you prefer ‘my employer treated me’) less favourably than it would have treated a man in the same circumstances.’