Fees: not so simple?
Practical points that need to be addressed regarding the Government's proposals for employment tribunal fees
Whether fees will be introduced in the employment tribunals is not up for debate in the Government’s long-awaited consultation paper, “Charging Fees in the Employment Tribunals and the Employment Appeal Tribunal”, released on 14 December 2011.
It is noted in the foreword that the proposals will put employment tribunal users on broadly the same footing as court users, who already pay fees. However, opponents have been quick to highlight the fact that court time limits are usually counted in years, not the three months typical of employment tribunal proceedings.
There are two options for employment tribunal fees.
“Option 1” is that, irrespective of the nature or value, all claims will attract a fee. One fee would need to be paid per claim form at the point of the claim being issued. In respect of single claims, the fee would be determined by whichever was the highest “level” of claim being made, e.g. unlawful deductions (level 1: £150); unfair dismissal (level 2: £200); or discrimination (level 3: £250). The fee in a multiple claim would also depend on the number in the multiple.
The second main charging point under option 1 would be in advance of a hearing, again with a sliding scale depending on the level of the claim: £250, £1,000 or £1,250.
“Option 2” is that there should be one main charging point when the claim is issued. The issue fee would vary depending on the nature and value of the claim, and, again for multiple claims, the number in the multiple. A single claimant seeking an award of up to £29,999.99, would face a fee on the sliding scale £200, £500 or £600 depending on the claim level. However, where a claimant sought £30,000 or above, the fee would be £1,750, regardless of the type of claim.
Under both options there would be six further fees for certain specified applications, for example £750 for judicial mediation (paid by the respondent), between £100 and £350 to make a review application (paid by the party applying), and £150 if the respondent wishes to lodge a counterclaim.
Whichever option is adopted, the intention is that the HM Courts and Tribunals Service remission system will be available for those who need access to the tribunal but cannot afford the fee. The plan is also to empower tribunals to order that the unsuccessful party reimburse the fees paid by the successful party, so that the cost is ultimately borne by the party who caused the system to be used.
If the outcome is to prove workable in practice, there is a great deal to which representatives can turn their minds ahead of the consultation deadline on 6 March 2012.
At the outset of a claim, for example, what should happen if the correct fee is not paid at the time the claim is lodged, or proof of eligibility for remission is not provided timeously? We do not want to find ourselves back in the sort of time limit mire which resulted from the statutory dispute resolution procedures. Also, if the proposals are intended to put employment tribunal users on broadly the same footing as court users, should payment be sought from respondents for lodging a response, as is the case for defenders in civil claims?
It is proposed that a tribunal would be prohibited from making an award of £30,000 or above where a claimant had initially indicated they were seeking an award below that threshold. Can you cite examples of cases in which an initial schedule of loss provided a figure less than £30,000, but as the tribunal approached and a revised schedule was drawn up, the amount sought topped that figure (perhaps significantly)? How does that tally with what is proposed in this regard? Might there be implications for PI cover?
One aim of the proposals is to support and encourage early dispute resolution. However, the hearing fee under option 1 will not become due until a matter of weeks before the hearing. Does this carry a danger that respondents will wait to see if a claimant pays this larger fee as a statement of intent to see a claim through, before they will consider settlement? If so, does this negate the possibility of early resolution?
Or what of the fact that there is already a recognised difficulty with employment tribunal awards not being paid. What should happen if a tribunal orders that a party should reimburse the other party’s fees and there is a failure to pay?
The consultation document can be viewed here: www.justice.gov.uk/downloads/consultations/charging-fees-in-et-and-eat.pdf. For those not wishing to enter a stand-alone response, thoughts can be submitted to the Employment Law Subcommittee of the Law Society of Scotland for potential inclusion in its response.
Jane Green, Partner, Employment, Maclay Murray & Spens LLP