Employment tribunal fees: could they make the actual process more impractical?!

Pattinson & Brewer employment specialist Paul Statham expresses frustration at the many practical problems thrown up by the apparently hastily introduced employment tribunal Practice Directions and Guidance…

Paul_StathamEmployment Tribunal fees became a reality on Monday 29 July. However guidance about how the new system would operate, the statutory orders and Presidential Practice Direction needed to implement the change came out in dribs and drabs on the Ministry of Justice website only during the week before. A number of issues have already arisen which appear not to have been catered for in the new system.

Further, the initial guidance announced that the current on-line submission system would not accept claims from 4.00pm on Friday 26 July. It offered no advice on other means of submitting the claim form. This was corrected on Thursday to confirm that claims could still be submitted by fax, email or first class post as long as the claim form was received by the tribunal before midnight on 28 July – if it was, no fee would be payable.

The new application form ET1 and the new response ET3 both contain significant changes. They first appeared on Thursday, and an initial test of the on-line system on Monday indicates it is not as user-friendly as we were promised.

The Presidential Practice Direction, essential to specifying exactly how claims can be presented, appeared on-line on Friday afternoon, confirming that from Monday 29 July claims could only presented:

  • On-line using the on-line form submission service
  • By post to the new central office in Leicester for England and Wales, and Glasgow for Scottish cases, or
  • By hand in tribunal business hours (9.00am to 4.00pm, Monday to Friday, excluding public holidays and weekends) to certain (but not all) tribunal offices.

The claim will not be accepted unless it is accompanied by the correct fee and/or the claimant ticks a box indicating that they wish to apply for a fee remission (the government scheme offering relief to those who cannot afford ET fees). However, it is not possible to make the application for fee remission on-line: it has to be posted to the relevant central office with supporting documentation.

The guidance leaflet on fee remissions (T438) is 21 pages long, including a detailed two-page application form:

  • For remission 1 – receipt of any specified benefit – the tribunal will need to see evidence that you are in receipt of one of these benefits
  • For remission 2 – a full remission based on annual income before tax and other deductions – the tribunal will need to see documentary evidence of the annual income of claimants and their partners
  • For remission 3 – a full or partial remission based on monthly disposable income – you will need to add up the money you receive and the money you are allowed to claim, as spent each month, to arrive at a monthly disposable income.

Applications can only be made by post to the central office in Leicester, or to Glasgow. This contrasts with the County Court, where it is possible to attend the court office and have the papers checked by court staff before they are submitted.  There is a paragraph in the leaflet indicating that a legal representative can certify documents for claimants, otherwise original documents will have to be sent, such as benefit letters, wage slips or bank statements. The leaflet says that all remission applications will be processed within 5 working days of receipt and, if the full remission is approved, the tribunal will process the papers for the case.  Presumably, if a partial remission is approved a notice to pay the balance of the fee will be sent out and will have to be paid before the tribunal will process the papers.

There is a note that if original copies of supporting documentation are sent, they will not be returned unless you request a return in writing. The leaflet also refers to exceptional circumstances whereby a tribunal manager is granted discretion not to demand a fee where someone has suffered an unexpected event that seriously affects their ability to pay a fee.

Fees can only be paid on-line using a credit or debit card. Applications by post must be accompanied by a cheque or postal order.  Unlike the County Court, there is no facility to pay by cash. The origins of the leaflet in the County Court system are revealed in that when the leaflet was cut and pasted, on the final page, there is a reference to ‘come to court’ and to courts accepting payment ‘by cash’.

Intriguingly, there is a subtle difference between the wording of the Presidential Practice Direction for England and Wales and that for Scotland. The Scottish Presidential Practice Direction states ‘Claimants should note that cash cannot be accepted at a local Employment Tribunal office. If you are only able to pay by cash, then further information…

It is all very well to encourage people to use the on-line service and use a credit or debit card, but 14% of people in the UK have never used the internet, according to the latest statistics. Many more either have no credit or debit card or don’t trust using them on-line. And 1.54 million people in this country still do not have a bank account.

In the County Court, it is still possible to attend the local County Court and pay in cash having first had everything checked by a member of staff. In an employment tribunal you may lodge proceedings in person, but this is going to be limited to certain offices only during office hours. The limited number of offices is illustrated by the fact that if someone lives in Penzance and wants to deliver their claim form by hand because the time limit is about to expire, and they do not have access to the internet, then it is a 386 mile round trip in office hours to Bristol to lodge the claim and pay the fee by cheque or postal order!

The on-line system is supposed to help in calculating the correct level of fee (that is, type A or type B). However, users testing the system on Monday found that the on-line system did not work properly in this regard. I understand that if the wrong fee is paid the tribunal will issue a ‘7 days or else’ letter requesting payment of the balance of the fee and will not reject the claim. If a claim contains more than one type of claim, you only have to pay one fee, but it is the higher fee. For type A claims the fee is £160 and for type B claims it is £250.

The Government has conceded that there was an error in the drafting of the fees order, in that equal pay claims were listed as type B claims when in fact they should be type A claims. They have promised to correct this but it will require further legislation.

Sean Jones QC has been collecting comments from practitioners on what he calls ‘known unknowns’ with regards to tribunal fees. My submission, which arose out of a question that I was asked by a Unite official at a training session, is how you make an application for interim relief under Section 161 of the Trade Union and Labour Relations (Consolidation) Act 1992 on-line. Claims for interim relief on the grounds of trade union membership or activities must be presented within 7 days of the effective date of termination – an ideal candidate for on-line submission, you would think.  However, the claim is only valid if it is accompanied by a certificate in writing signed by an authorised official of an independent trade union stating:

  1. That on the date of dismissal the claimant was, or proposed to become, a member, and
  2. That there appear to be reasonable grounds for supposing that the reason for dismissal was that alleged in the complaint – namely trade union membership or activities. There is no means of submitting the certificate on-line, which means the claim will have to be submitted, with the certificate, by post.

I have written to the Ministry of Justice asking them to explain, and shall continue to blog further issues about the fees as and when they arrive.

Current Controversies, Employment, Paul Statham,
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