Tagged: fees

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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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Add tribunal fees to your claim

If you win your case in the employment tribunal, you should ask for an award of costs to cover any tribunal fees you’ve had to pay. There’s a general post about how to do that here. This is just a small additional suggestion on the same subject.

Include your application for costs in your claim.

That’s it, really. Section 9.2 of the ET1 form asks ‘What compensation or remedy are you seeking?’ Claimants don’t often write very much there – and it won’t be your last chance to say how much money you think you should be awarded, and why. But it’s a good idea to use that space to set out the main kinds of loss you think you ought to be compensated for – and at the same time, it’s worth mentioning that you’ll be looking for a costs order under 76(4) to cover your tribunal fees. It’ll help you to remember to claim it at the end of the case; and if your employer doesn’t defend the claim and you get a default judgment, it should prompt the tribunal to include a costs order in that.

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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.