In this round-up of recent employment law news, we report on the planned introduction of employment tribunal fees, the outcome of Mr Justice Underhill’s review of the employment tribunal rules and news from ACAS that demand for pre-claim conciliation continues to rise.

Employment tribunal fees

The Government plans to introduce fees in employment tribunals and the employment appeal tribunal in summer 2013.  In its recent response to its consultation, ‘Charging Fees in Employment Tribunals and the Employment Appeal Tribunal’, the Government has opted for the two-stage fee structure of an “issue fee” or “appeal fee” when a claim is submitted to a tribunal or an appeal is made to the Employment Appeal Tribunal (EAT) and then a “hearing fee”, to be paid around four to six weeks before the hearing date. 

In the employment tribunal, the fees will depend on the nature of the claim and whether the claim has a single or multiple claimants. Straightforward “Level 1” single claims (for sums due on termination of employment, e.g. unpaid wages, redundancy payments and payments in lieu of notice) will attract an issue fee of £160 and a hearing fee of £230. “Level 2” claims (i.e. all other claims, including unfair dismissal, discrimination, equal pay and whistleblowing) will attract an issue fee of £250 and a hearing fee of £950. If a claimant lodges two claims, it is thought that the fee required would be that of the more complex claim. 

Fees for multiple claims will be determined by reference to the number of claimants. For example, for two to 10 claimants, the fees will be double the single fee, for 11 to 200 claimants, the fees will be four times the single fee, and, for over 200 claimants, the fees will be six times the single fee.

There are also five types of application which will attract a separate fee:

  • applications to review a default judgment: £100;
  • applications to dismiss a claim following a settlement or withdrawal: £60;
  • applications for judicial mediation: £600 (level 2 only);
  • counter-claim: £160;
  • applications for a review of a tribunal’s decision or judgement: £100 (Level 1) and £350 (Level 2).

Appeals to the EAT will attract an appeal fee of £400 and a hearing fee of £1,200.

The civil courts fee remission scheme will be extended to the tribunals for claimants who cannot afford the fees and tribunals will have a power to order the unsuccessful party to reimburse fees paid by the successful party.

The Government’s rationale for introducing fees is that tribunal users should relieve the taxpayer of part of the financial burden of the tribunal system. It is apparently not the Government’s intention to deter claims, however the introduction of fees is likely to have an impact on whether claims are brought and also on the timing of any settlement - respondents may well wait to see if a hearing fee is paid before considering settlement, but claimants who have paid their hearing fee might want their “day in court”. 

Underhill’s review of the employment tribunal rules

Mr Justice Underhill (the former president of the EAT), has completed his “fundamental review” of the employment tribunal rules. The review was announced by the Government in its response to the Resolving Workplace Disputes Consultation. Mr Justice Underhill’s recommendations and a set of new draft rules have now been published.  A formal BIS consultation on the proposals will follow later this year.

Key proposals include:

  • New rules: The rules have been entirely redrafted. They are half the length of the current rules and are intended to be simpler and more accessible.
  • Sift stage: Claims will be reviewed by an employment judge on the papers after the claim form and response have been obtained, who will consider directions required and striking out at an early stage weak claims. 
  • Presidential guidance: The rules will allow the presidents to issue guidance on matters of practice, to allow cases to be handled in a less formal and more flexible manner. This will also ensure that judges rule consistently and that users know what to expect and what is expected of them.
  • Preliminary hearings: Case management discussions and pre-hearing reviews will be combined.
  • Timetabling of hearings: The tribunals will now be allowed to enforce by guillotine timetables for evidence.
  • Restricted reporting orders: The current rules regarding restricted reporting and anonymity will be made more flexible, so that judges will be able to better balance the important principles of open justice and freedom of expression on the one hand and of privacy and effective justice on the other.
  • Costs: No change to the substantive criteria, but costs awards above £20,000 will no longer have to be referred to the courts for detailed assessment
  • Revised ET1 and ET3: To be published.
  • Withdrawal process: When one party wishes to end the dispute, the other party need no longer signal that they too wish to end the claim.

Demand for pre-claim conciliation continues to rise

The ACAS annual report for 2011/12 shows a 34% increase in the use of its pre-claim conciliation service, which was introduced in 2009. The number of cases that were settled without proceedings being issued increased from 74% to 78%.  It is this success which has led to the Government’s plans to introduce compulsory “early conciliation”, which is expected to be introduced in 2014.