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Remission
[ch 1: pages 30-32]A small minority of low paid workers qualify for remission (full or partial exemption from the fee). The remission scheme is not generous and is extremely complicated.
There is both a capital and an income threshold. The capital threshold measures household rather than individual capital. The household capital threshold is £3,000 if aged under 61 (£16,000 if aged 61 or over). Capital includes all savings. It includes, for example, a lump sum redundancy payment or pay in lieu of notice, even if the potential claimant has no other capital or income.
A prospective claimant who has less than the “capital threshold” has two possible pathways to remission:
“Passported” benefits:
• claimants receiving income-based Job Seekers Allowance and income-related Employment and Support Allowance will qualify for full remission. Original official letters must be produced to confirm receipt of the benefit. Failure to provide original letters will result in the application being rejected.
Income test:
• for claimants not in receipt of passported benefits, there is a gross monthly income test. The threshold varies depending on whether a claimant is single and/or has dependent children. For example, to qualify for full remission, a childless couple must earn less than £1,245 gross per month (for a single person with no children, the amount is £1,085 (2014-15)). Original evidence of income, including that of a partner, is required. The guidance suggests, for example:
◊ three months of bank statements and those of your partner;
◊ a month’s original wage slips not more than six weeks old;
◊ if you are self-employed, your most recent tax return.
Check the guidance (see below) for the full list.
Even though the tribunal system encourages online applications, applying online for fee remission is not possible. Instead, the remission application form must be printed off and posted, with original supporting evidence, to the Employment Tribunal Central Office, PO Box 10218, Leicester LE1 8EG. The rules are unclear as to how soon after making an online ET1 claim a claimant should send in their remission application, but in practice it should be posted as soon as possible after making the online claim, if possible on the same day.
If an application for remission is unsuccessful, there is a two-stage appeal process, first to the “Delivery Manager” within 14 days of the refusal letter and second to the ”Operational Manager”, whose decision is final.
Claimants can apply for a refund of their fee if they have paid and it later turns out that they qualified for remission, but only if they apply within three months. The right to a refund is based on income and capital at the date the fee was paid, and takes no account of later reductions in income or capital.
The remission system is likely to deter all but the most determined potential claimants. There are 27 pages of guidance — Form EX160A: Court and Tribunal Fees – Do I have to pay them? — is available online from the Ministry of Justice website (www.justice.gov.uk/downloads/forms/hmcts-fees/ex160aeng.pdf).
The government conceded, during the UNISON judicial challenge (see box), that a successful claimant should have their fees repaid by the employer.
UNISON judicial challenge to tribunal fees
In 2013, public services union UNISON launched an application for judicial review of tribunal fees, arguing that the introduction of tribunal fees breaches European law, mainly by making it exceptionally difficult for claimants to exercise their rights. UNISON also argued that fees discriminate indirectly against women, disabled and ethnic minority workers. The claim was dismissed, not because it was without merit but rather because the fee regime had not been in place long enough to test its discriminatory effect.
The court expressed its “strong suspicion” that UNISON was correct to fear the discriminatory impact of fees on women, ethnic minorities and disabled workers and described as “dramatic” provisional statistics, suggesting a complete collapse in both sex discrimination and unfair dismissal claims. If these statistics turned out to be accurate, said the Court, the government should change the fee regime without the need for more litigation.
Collapse in tribunal claims
Just two months later, up-to-date statistics produced by the Ministry of Justice in March 2014 substantiated UNISON’s predictions, revealing a 79% fall in claims between October to December 2013, compared with the same period in 2012. UNISON is to appeal to the Court of Appeal.
But Ministry of Justice research into the enforcement of tribunal awards in England and Wales (May, 2009) shows that 39% of tribunal awards are not paid at all and that 8% are paid only in part. This means that even if an employer is ordered to repay the fees, many claimants will not recover what they are owed.
Tribunals do not have power to enforce their money orders. Instead, separate county court enforcement proceedings must be brought. In other words, even if an employer is ordered to pay the fees, the claimant will have to incur further fees and embark on a fresh set of enforcement proceedings if the employer does not pay up.
Many trade unions have made arrangements to loan the tribunal fee to members, provided conditions are met, including as to the strength of the claim, to be repaid if the claim succeeds. In any event, members who qualify should always apply for remission, regardless of the arrangements put in place by their union.