All Change at the Employment Tribunal
The introduction of tribunal fees and new procedural rules
Subject to the necessary parliamentary approvals, The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 is expected to come into force on 29 July 2013, the same date as The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 are implemented.
The introduction of the systematic payment of fees as a condition of being able to pursue a claim in the employment tribunal will be a significant change. The new regime will apply to any claim presented on or after the implementation date i.e. 29 July 2013. To date, no fees have been payable by either party to a tribunal claim and the cost of the tribunal system has been borne entirely by the taxpayer. No more. Fees will be payable at two stages of each and every claim, namely upon the presentation of the claim form (for which the fee will be known as the issue fee) and on a date prior to the hearing of the claim which will be notified to the parties (the hearing fee).
The new fee system will differentiate between Type A and Type B claims. Type A claims (which will be exhaustively set out in Table 2 of Schedule 2 to the Order) will include employees’ claims for breach of contract, wages claims, references in relation to redundancy payments and annual leave claims. A Type B claim will be any claim which does not fall within Type A and will therefore include unfair dismissal, discrimination and detriment claims. In order to pursue a Type A claim to a hearing, a single claimant will now have to pay a total of £390 (i.e. an issue fee of £160 and a hearing fee of £230). In order to pursue a Type B claim, a single claimant will have to find £1,200 (i.e. £250 to issue and a hearing fee of £950). Any claimant who wishes to make multiple claims covering both types A and B will have to pay the fees associated with a Type B claim. There will be commensurately higher fees for any case in which there are multiple claimants. There will also be fees payable for certain applications and a fee of £600 (payable by the respondent) in the event of a judicial mediation.
The potential impact of the new fee system should not be underestimated. There will undoubtedly be claimants who will not have the funds available to pay such fees. For those who are on low incomes there is to be a fee remission system. For everyone else, the fees have to be paid in order for the claim and/or application to proceed.
The payment of fees will almost certainly put some claimants off presenting their claims in the first place. There may well be a greater call from clients for advice before claims are issued seeking reassurance that the claim is worth pursuing and therefore that the fee is worth paying. There will likely be employers who will not want to run the risk of having to repay the hearing fees on top of any award if unsuccessful (which will be a matter for the discretion of the tribunal) and will therefore choose to settle claims earlier. Equally, there will be employers who will want to wait and see whether the disgruntled employee is prepared to put his money where his mouth is and stump up the necessary fee.
All of this leads to the inexorable conclusion that the familiar landscape of the tribunal is going to change. That conclusion is only reinforced by the new procedural rules which will repeal their 2004 predecessors.
As with the introduction of fees, the new procedural rules herald some significant and substantive changes in addition to some wholesale re-drafting and re-labelling of the 2004 rules. Some of the headline changes include:
- An amended overriding objective which will now include the aims of i) avoiding unnecessary formality and seeking flexibility and ii) avoiding delay;
- An initial sift by the tribunal staff of each claim form which may result in a claim form being referred to an Employment Judge and being rejected if it is in a form “which cannot sensibly be responded to”;
- A further initial consideration of each claim by an Employment Judge on paper following which the claim will either be allowed to continue or the Employment Judge will write to one or more of the parties indicating his view that all or part of the claim or response should be dismissed if he is of the view that the tribunal has no jurisdiction to hear it or it has no reasonable prospects of success;
- The tribunal will now have the ability to strike out a claim or response (in whole or in part) at any stage of proceedings either of its own motion or on application by a party;
- There will be only one type of “preliminary hearing” and separate PHRs and CMDs will become a thing of the past;
- The parties will be able to apply for a “reconsideration” of judgments (both default and final) which will now be considered solely on an “interests of justice” basis.
Once again for employment lawyers, change is being thrust upon us. How the changes affect the number of claims being presented, the numbers of clients seeking advice and the smooth flow of cases through the tribunal system remains to be seen.
