5. FEES

In December 2011, the coalition government launched a consultation on charging fees in employment tribunals and the Employment Appeal Tribunal, and what the level of these fees should be. The government issued its response to that consultation in June 2012.

Despite approximately two-thirds of respondents disagreeing with the proposals, the government decided to proceed with them and so, during the second half of 2013, the employment tribunal service will charge a fee both for lodging a tribunal claim and also for hearing the case.

The government intends to introduce two levels of fees with more complex cases attracting a higher charge. The more straightforward cases will cost £390 (£160 to lodge and £230 to go to a hearing). The more complex cases will cost £1,200 (£250 to lodge and £950 to go to a hearing).

A detailed breakdown of how much various types of claims will cost to bring before a tribunal can be found in pdf format: Charging fees in employment tribunals and the Employment Appeal Tribunal downloadable from the Ministry of Justice website at: http://consult.justice.gov.uk/digital-communications/et-fee-charging-regime-cp22-2011

A £60 charge for making an application during a claim, such as requesting that a witness summons be made, will also be levied. However, a judge may order that the other party reimburse the application-maker. (Guidance for judges on when to order reimbursement is to be formulated).

Where there are multiple claimants jointly pursuing a claim, increased fees will have to be paid. Where there are between two and 10 claimants, the fees will be doubled, and where there are between 11 and 200 claimants, the fees will be four times the norm. Where there are over 200 claimants, the fees will be six times the norm.

With multiple claims, where one person does not pay his/her share of the fees, s/he will not be able to pursue the claim, but the other claimants will be able to proceed.

The fee for the hearing will be due between four and six weeks before the hearing. Guidance on the timing and method of payment of tribunal fees, together with information on fee rebates for low-income claimants (known as the remission scheme) is to be published. Remission will be available to claimants on benefits or people with annual earnings of a maximum of between £13,000 and £23,860 — the applicable maximum depending on whether the individual has a partner and has children.

The fees paid will only be reimbursed by the employer where the individual’s claim has succeeded. That is to say, if the claim is withdrawn before the tribunal has given a judgment, the fees already paid will be forfeit.

In addition, employers may not be ordered by the tribunal to reimburse a successful claimant’s costs in all cases, for example, where the tribunal believes that the individual has behaved unreasonably.

The EAT will be able to correct errors that the tribunal may have made but further fees will have to be paid to the EAT. The fee for lodging a claim with the EAT will be £400 and the fee for the hearing will be £1,200. The government has not yet clarified whether it will charge for cases sent back to the tribunal from the EAT.

If an employee withdraws his or her case just before the hearing fee falls due, s/he may be liable for an application for costs. In such an instance, an employer may argue that the employee did not intend to proceed to a hearing and was "fishing" for a settlement, amounting to unreasonable conduct and warranting some costs being reimbursed.

The effect on discrimination claims in particular is likely to be pronounced. Already, an average of around a third of discrimination claims are withdrawn before the main hearing, with 49% of sex discrimination claims and 40% of age discrimination claims ending in this way in 2011. Also, the success rate of discrimination claims at the main hearing is consistently very low with just 2%-3% succeeding, compared to 23% for disputes over redundancy pay and 18% for working time disputes.

So the new fee system is a double whammy — claims which are harder to win, are also the most expensive to pursue. Despite this, the government has stated that it is not concerned that the introduction of fees will hamper access to justice or that the introduction of fees for resolving disputes via a tribunal will deter claimants.

But it is making special arrangements for whistleblowing claims. The government has said it will maintain a close watch on the impact of the introduction of fees on the level of claims under the Public Interest Disclosure Act 1998 brought by health and social care workers.

Unions have described the decision to introduce fees “a disgrace” and warned that workers would be denied their right to justice.

TUC general secretary Brendan Barber said: “It is vital that working people have fair access to justice, but introducing fees for tribunals will deter many — particularly those on low wages — from taking valid claims to court. Many of the UK’s most vulnerable workers will simply be priced out of justice. The government’s remission scheme to protect low-paid employees is woefully inadequate, and workers will be more likely to be mistreated at work as rogue bosses will be able to flout the law without fear of sanction.”

Public services union UNISON condemned the move describing it as tipping the scales of justice heavily towards employers and denying legal redress to those who do not have the cash to pay for it.

The union also highlighted the severe difficulties the introduction of fees will produce for multiple claims such as those it has lodged seeking equal pay for women workers. UNISON said many women would have lost out on equal pay claims if they had to pay money up front to access employment tribunals.

UNISON general secretary Dave Prentis explained: “Because we do not have class actions in this country, UNISON has been involved in lodging equal pay claims for hundreds and thousands of women. If those women did not have union backing, and had to pay up front for access to justice, many would have lost out ... It beggars belief that this decision has been made when implementing these charges will be complicated, expensive to the point of grossly wasteful, and contrary to workers’ rights. Workers in the UK are already subject to the toughest employment laws in Europe, and this move represents another blow against workers’ employment rights at a time when they have never been more needed or valuable.”