On Monday 29 July, new employment tribunal rules came into force, and the new tribunal fees regime is now upon us.
The rules have universally been greeted as a model of clarity, which just goes to show what can be done when you get your drafting done by experts who have a deep understanding of both law and practice.
Among the most significant changes:
- – Cases are now looked at by an employment judge at an early stage to weed out hopelessly weak claims (and defences);
- – There is just one type of preliminary hearing at which tribunals will be able to deal with any kind of prehearing issue;
- – Tribunals are allowed to assess costs themselves instead of having to send larger claims to the county court;
- – The need to apply for claims to be dismissed when withdrawn by the claimant has been removed;
- – Claims will be rejected if the appropriate fee has not been paid (or remission application made); and
- – Respondents are allowed to make applications for extra time to respond to a claim after the initial 28 day time limit has expired, and they have an opportunity to present reasons why a default judgment should not be given.
There are new claim forms and response forms and these must be used with effect from 29 July. The online claim form is preceded with a declaration that the claimant is either applying for a fee remission or agrees to pay the fee. In typically confusing fashion claimants are asked to confirm that they will pay the fee even if they are applying for a remission – more haste less speed!
The Ministry of Justice has just issued guidance documents concerning the new fees:
- – Employment tribunal fees for individuals
- – Employment tribunal fees for
groups and multiples
- – Employment Tribunal and
Employment Appeals Tribunal Fees – Do I have to pay them?
- – Employment Appeal Tribunal fees
- – and finally the irritatingly named Employment Tribunal and Employment Appeal Tribunal Fees Stakeholder factsheet
The stakeholder factsheet acknowledges that the introduction of fees is the subject of legal challenge in the form of two judicial review applications, one brought by Fox Solicitors in Scotland and the other by UNISON in England. On 11 July the Scottish Court of Session refused to grant an interim interdict (injunction) stopping the introduction of fees. However this is on the balance of convenience taking into account that there is a strong case to proceed to a full hearing and that the Lord Chancellor has undertaken to refund any fees paid on or after 29 July. In a further indication of the strength of the case put forward, even though the interdict was not granted, Fox Solicitors were awarded their costs of the application.
Meanwhile leave to proceed with a similar application brought by UNISON in the administrative court in London was rejected on 24 July. Undeterred the union made it clear that it would proceed with an oral hearing as soon as possible, with a view to proceeding to a full hearing. It was duly granted leave on 30 July to proceed with a full judicial review hearing in October. It therefore remains far from certain that employment tribunal fees are here to stay.
It is also worth bearing in mind that, in practice, many county courts are unable effectively to manage the fee remission process. Those who are familiar with the procedures often accompany a claim or application with an application for a fee remission or simply say that they are applying for a fee remission and do not lodge the form. Perhaps surprisingly nearly all are allowed to proceed and the issue of fee remission is forgotten or overlooked. The system will have to work very much better in employment tribunals if they are not to be beset with the same problems.
Another significant development in this regard is the emergence of employment tribunal “after the event” insurance policies. Main features include:
- cover for employment tribunal claim fees and routine solicitor disbursements (expenses)
- payments deferred until the end of the case
- enhanced cover for barristers’ fees
- loans to cover hearing fees
An example of this type of product is available at www.tribunalfees.co.uk.