Early this month, it was announced that judicial review proceedings are expected on the question of whether employment tribunal fees are lawful under the current proposed scheme.
The two key areas of challenge are that the fee scheme will make it prohibitively difficult for tribunals to enforce European Union law, and that it will also discriminate indirectly against women. If the legitimacy of the fee scheme is successfully challenged, the scheme may be amended or abandoned altogether. However, for the time being employment tribunal fees are scheduled to be introduced on 29 July 2013.
Under the fee scheme as it currently stands, a fee will be due at the point at which the claim is lodged (an ‘issue fee’). A further fee will then be payable prior to the hearing (a ‘hearing fee’). There will be two tiers of cases and the fees due will depend on whether the claim is a type A claim or a type B claim.
Common type A claims will include those for statutory redundancy payments, equal pay, unlawful deductions from wages, breach of contract, a failure to inform and consult as required by the TUPE Regulations, refusal to allow annual leave, and refusal to allow time off for dependants. Common type B claims will be everything not covered by type A and will include claims for ordinary unfair dismissal, automatically unfair dismissal, discrimination and whistleblowing.
For single claimants, the issue fee payable will be £160 for a type A claim and £250 for a type B claim. The hearing fee payable by a single claimant will be £230 for a type A claim and £950 for a type B claim. Other rates apply for group claims.
A type A fee will also be due from employers wishing to lodge a counterclaim to an employee's breach of contract claim, and a flat fee of £600 will be payable by the employer where the parties agree to judicial mediation.
Where a claim, counterclaim or application is decided in whole or in part in favour of a particular party then that party may make an application to the tribunal for reimbursement of any tribunal fees paid. The tribunal will have the power to reimburse such costs at its discretion. However, the tribunal will not have the power to refund fees if a claim is subsequently settled or withdrawn.
Fees will be payable through the HMCTS online service or they can be collected through a centralised processing centre. In general, tribunal offices will not have the facilities to directly accept payment of fees.
A person may be entitled to a remission or part remission of a fee if they fall within a certain income band, or are in receipt of certain benefits. For the purpose of income assessment, the person’s partner’s income will be taken into account. An application for a remission or part remission must be made at the time when the fee would otherwise be payable.
It is anticipated that if the fee scheme goes ahead as planned, the number of employment tribunal claims will decrease by up to 25%.