The EAT has held that when submitting Tribunal claims online, an application for fee remission is deemed made by simply ticking the appropriate box. The information which follows (in the EX160 Form) merely supplements that application (Deangate Ltd v Hatley).
Rule 11(1) of the Employment Tribunal Rules states that: "The Tribunal shall reject a claim if it is not accompanied by a Tribunal fee or a remission application". Online submission does not currently allow for fee remission applications to be made online. Claimants must either pay a fee or tick a box indicating that they intend to apply for remission.
In this case, three Claimants submitted their claim forms online on the last day before the expiry of their time limits. Each Claimant ticked the box confirming they intended to make a fee remission application. The fee remission applications were received five days later and, therefore, after the limitation dates had expired. The Respondent argued that the claims had to be rejected as they were not "accompanied" by either a fee or an application for remission. Any repeat application would now be out of time.
The Employment Tribunal (ET) considered it was a permissible interpretation of Rule 11 to treat the remission applications as accompanying the claim form. The Tribunal's own website stated that remission forms should be received within 7 calendar days of an online claim submission and this was the advice the Claimants' representative had received from the Tribunal's office.
The EAT, following a submission from the Secretary of State, dismissed the Respondent's appeal and concluded that the claim forms had, in fact, been accompanied by an application for remission of fees. The applications had later been fleshed out by the information in Form EX160.
This case confirms that it was Parliament's intention that claimants should have the opportunity to seek remission of fees regardless of how a claim is presented. When a Claimant makes a choice between fee payment and application for remission (by ticking the appropriate box), it is sufficient in the context of the legislation to be an "application".
The EAT further observed that, had it been necessary to consider, it was unlikely that the ET's jurisdiction under Rule 6 (which provides that Tribunals may correct "irregularities and non-compliance") could extend to vary the provisions of Rule 11.
Employers should ensure claimants have ticked the appropriate box when submitting a claim online and that any subsequent application for remission of fees follows within 7 working days. It seems likely that if an application is received more than 7 days after the claim is submitted, the claim will not be "accompanied" by the remission application and will be rejected.