Employers wanting to avoid unmeritorious claims might welcome the new fees, but UNISON is applying for judicial review
From the 29 July 2013, the new fee regime for issuing and
hearing claims in the Employment Tribunal
("ET") and Employment Appeal Tribunal
("EAT") will come into force.
The fee regime was born out of a review of the 2004 Employment
Tribunal Rules. In addition to the new fees, the new rules include
stronger powers to strike out claims so that weak cases are
dismissed at the earliest opportunity and a new procedure for
preliminary hearings which combines pre-hearing reviews and case
management discussions.
Generally, there are views amongst practitioners that the
introduction of fees might help reduce the number of unmeritorious
claims submitted to the ET and therefore a welcomed requirement;
however, Unison takes the view that the fees are a bar to fair
access to justice (see below).
The fee payable for claims in the ET will depend on whether the
claim is a Level 1 or Level 2 claim.
Level 1 Claims will be the lower value claims for sums due on
termination of employment, such as redundancy payments, unpaid
wages and payments in lieu of notice.
Level 2 Claims will include all other claims, for example unfair
dismissal, discrimination, equal pay and whistleblowing.
Fee Type |
Level 1 Claim |
Level 2 Claim |
Issue fee |
£160 |
£250 |
Hearing fee |
£230 |
£950 |
Different fees apply where there are multiple claimants with the
issue fee ranging from between £320 and £1,500 and
hearing fees ranging between £460 and £5,700. Similar
fees as above apply to claims issued in the EAT. Where a Claimant
has limited funds, or is in receipt of certain benefits, he or she
will not have to pay an issue or hearing fee.
It is not just the Claimant who is liable for fees, if a
Respondent wishes to make the following applications; the stated
fee will also have to be paid:
(i) Application to set aside default judgment - £100
(ii) Application for judicial mediation - £600
(iii) Application to dismiss a claim following settlement or withdrawal - £60
(iv) Breach of contract counter claim - £160
(v) Application for review of an Employment Tribunal decision or judgment - £100 (Level 1 Claims) £350 (Level 2 Claims)
The introduction of the issue and hearing fees has caused some
discontent amongst Trade Unions. On 17 June 2013, UNISON confirmed
via a press release that it was lodging an application in the High
Court for judicial review of the impending fees. Some of the key
reasons for its application are:
(i) National courts must not make it virtually impossible or
excessively difficult, to exercise rights conferred by European
community law. The fees make it difficult for a worker to exercise
his or her rights - the new regime will impose fees which will
often be greater than the expected compensation, even if the claims
were successful and the fees are set at a level which is
prohibitive.
(ii) Fees are not payable at all in most claims brought to other
first tier tribunals. It is therefore a breach of the principle of
equivalence to require significant fees to be paid.
(iii) Charging high fees may have a disproportionate impact on
women (and thereby amount to indirect discrimination) as women will
not (if they earn an average income) be entitled to any remission
of fees.
In another press release on 12 July 2013, UNISON confirmed that a
High Court judge advised that a decision will be given no later
than 22 July 2013 as to whether permission to proceed is granted.
At the time of going to press, no decision had been issued by the
High Court. If permission is granted, the introduction of the fee
regime may be delayed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.