While we have employment tribunal fees one of the practical issues which has undoubtedly presented problems has been the procedure for applying for fee remissions. Back in July 2013 I highlighted the problems that have beset the fee remission procedure in the county courts and wondered whether the same problems would arise in employment tribunals. However, whereas the problem in the county courts has been a slack procedure, quite the opposite has been apparent in the employment tribunals. The application procedure for fee remission has been rigorously applied and the online procedure requires payment of the fee or a remission application. The remission application form is incorporated within 31 pages of detailed guidance which confirms, critically, that the application must be supported by evidence such as a letter from a Job Centre Plus or the DWP or evidence of income such as three months’ bank statements. What if there is a delay in obtaining that evidence, particularly taking into account the strict three months’ time limit for most employment tribunal applications?
Rule 11(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 provides that “The Tribunal shall reject a claim if it is not accompanied by a Tribunal fee or a remission application”.
As pointed out by Mr Justice Langstaff in the recent Employment Appeal Tribunal case of Deangate Limited -v- Hatley, Patterson and Kurtz “shall” is mandatory and there is therefore no room for the exercise of discretion. Deangate’s former employees submitted their applications online one day before the expiry of the time limit for claiming. However the applications were not “accompanied” by the fees or remission applications. Accordingly the employer contended that they should have been rejected. Had they been resubmitted each with the fee or a remission application they would have been out of time so that the tribunal would have no jurisdiction to deal with them.
However, the claims were accepted. Deangate Ltd complained and the matter was heard by Employment Judge Ferguson sitting in Colchester. She found that the claims had in fact been accompanied by remission applications or, in the alternative, pursuant to Rule 6 of the Rules of Procedure she had the power to correct any “irregularities and non-compliance with the Rules”. Each of the claimants had written in the section headed “Additional information” in the claim form ” “I have sent my application for fee remission by post”. The claim forms were submitted online on 13 February 2014 and the fee remission applications were sent by special delivery on 18 February, arriving on 19 February. The judge noted that the applications could not be submitted online because original documentation was required. The judge took the view that “it is a permissible interpretation of Rule 11 to treat remission applications made in this way as “accompanying” a claim form submitted earlier online”.
There is a common sense problem here concerning the meaning of “accompanied”. When first considered in the Employment Appeal Tribunal it was put this way:
This appeal throws up the meaning of “accompanied” in Rule 11(1). It is an ordinary English word; and it is not immediately obvious that a fee payment or application for remission made 6 or 7 days later “accompanies” an application made 6 or 7 days earlier. An analogy might be the 11 year old who turns up to the cinema alone, to see a film with a certificate which requires him to be “accompanied” by an adult if under 12 and asks to be let in on the basis his Dad will turn up two to three hours later… if similarly entry to the ET system has in law to be denied unless and until accompanied, by the time the fee application for remission can be matched with the ET1, the latter may be too late; the question is thus jurisdiction, since the ET has no discretion but to reject an unaccompanied ET1, and it was plainly reasonably practicable to put the ET1 in on time since (but for the fee payment) that was done… Rule 6 may not provide the escape route from these consequences which the Judge thought, though this is arguable: can an absence of jurisdiction be waived in the way suggested?
Since many claims had been accepted in the same way the Secretary of State for Justice intervened in the appeal.
People are often frustrated when a law is applied rigidly even if that seems to fly in the face of practicality. In his judgment Mr Justice Langstaff has asserted that the fact that a remission application cannot be made online and that since a case number is needed to identify the claim to which it relates makes it “highly inconvenient” for a remission application to be made before or at the same time as the claim is submitted online is “beside the point”. Rather, he takes the view that interpretation of “accompanied by” with reference to the statutory provisions is what matters. However he accepts that “accompanied” is an ordinary English word which, as well as meaning “go along with” or “go with, attend as companion” could also mean “occur in association with” thereby permitting “a greater elasticity of timing”!
A further complication is that the online claim form asks the person completing it whether they intend to apply for fee remission, requiring an answer by ticking “yes” or “no”. That clearly implies that an application for fee remission has not been made at that moment and this is confirmed by the statement further on in the form “please note that your claim will not be progressed until your remission application has been received”. After further discussion Mr Justice Langstaff concludes that ticking the “yes” box amounts to making an application and therefore constitutes compliance with Rule 11.
Of course it is obvious that there is a contradiction between the Rule and the practical procedure which was not envisaged or overlooked when the Rule was drafted. As the judge himself acknowledges “It is..a defect in the system in its present state of evolution, which could, moreover, easily be remedied by changing the wording facing an online claimant so as to state not that an application for remission is to be, but is being, made, with details to follow”. Save that, in reality, that is not what is happening so it is no more than a device. The Secretary of State’s proposed solution, to incorporate the key parts of the remission application within the claim form, is equally unsatisfactory since it does not address the problem that the remission application must be accompanied by original documentation, a rule which is applied rigidly across all departments in connection with similar applications.
The problem may be removed if fees are themselves removed following the election. Otherwise, the obviously correct approach is to amend the Rules, rather than attempting to apply them by using contortions.