Fee fantastic or fee fury?, <i>HR Headlines</i>

Fee fantastic or fee fury?, HR Headlines

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.