In brief...

On 25 April, the Government published the draft Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 ('the Order'). As expected, there will be two main charging points: the first upon issue of the claim; and the second prior to the hearing.

The level of the fee will depend on the nature of the claim. Level 1 (type A claims), including disputes over matters such as unauthorised deductions from wages, unpaid redundancy payments and annual leave, will be subject to a £160 issue fee and £230 hearing fee. Level 2 (type B claims), which include claims for unfair dismissal and discrimination, will be subject to a £250 issue fee and £950 hearing fee.

In addition to the two main charging points, there will also be five application-specific fees: counterclaim (£160), judicial mediation (£600), review of a default judgment (£100), application to dismiss following settlement (£60) and application for review (£100 for Level 1 claims and £350 for Level 2 claims). The first four will be payable by the employer and the fifth by the party making the application.

Those on low incomes will be excused payment through a fees remission scheme. Tribunals will be given a discretionary power to order the losing party to reimburse any fees paid to the successful party.

The Ministry of Justice recently published a 'Letter to stakeholder' and 'Stakeholder Q&A' confirming:

  • Implementation of the fees structure is scheduled for the end of July this year, subject to the necessary IT systems and administrative processes being in place.
  • Fees must be paid in advance by the party seeking the order.
  • Guidance will be given that the existing time limits for making a claim will not be extended because a claimant requires more time to pay a fee or complete a fees remission form.
  • If a claimant lodges a claim with a number of different types of claims, the fee payable will be that which relates to the highest level of claim.
  • Only claims made to the employment tribunal or Employment Appeal Tribunal on or after the implementation date will attract fees. Any claim in the system before fees are implemented will not attract fee payments. So, a claim issued on the day before fees are introduced would not attract a hearing fee even though the hearing date is after the implementation date.
  • Fees will only be able to be paid online or through a centralised processing centre. It will not be possible for fees to be paid in person at individual tribunals.

In detail...

Fee types

There will be two main charging points: the first upon issue of the claim; and the second prior to the hearing.

In addition to the issue fee and the hearing fee there are also five application-specific fees:

  • Counterclaim (to be known as an 'employer contract claim' when the Underhill reforms are implemented);
  • Judicial mediation;
  • Application for a review of a default judgment;
  • Application to dismiss following settlement; and
  • Application for review of final decision

Fee level factors

For the issue fee and the hearing fee, the level of the fee will depend on the nature of the claim. There are two levels of fees. Type A claims include disputes over matters such as unauthorised deductions from wages, unpaid redundancy payments, annual leave and failure to inform and consult under TUPE. Type B claims include claims for unfair dismissal and discrimination. Schedule 2 table 2 of the Order sets out the full list of type A claims, all other claims will be a type B claims.

NB: While the draft Order refers to type A and B claims, these are referred to as level 1 and 2 claims in the Government letter to stakeholders and Q&As.

The amount of fee will also depend on the number of claimants. This means that claimants that submit a joint claim form will be designated as a 'fee group' and - where there are more than two claimants - will have a cheaper fee structure if they choose to split the fee between them.

Where a claimant lodges a claim form with a number of different types of claim, the fee payable is that which relates to the highest level claim. It is not the case that each and every complaint made on a claim form attracts a separate fee. So, for a claim containing a complaint of unpaid wages (type A) and a complaint of unfair dismissal (type B), one type B fee would be charged.

The fee levels

Employment tribunals single claims:

Click here to view table.

Multiple claims - type A:

Click here to view table.

Multiple claims - type B claim fee levels

Click here to view table.

Additional fees:

Click here to view table.

EAT fees

Click here to view table.

Who pays the fee?

The fees are to be paid in advance by the party seeking the order

Click here to view table.

The tribunal will have the power to order the unsuccessful party to reimburse the fees paid by the successful party under revised Employment Tribunal Rules. There may be circumstances where the tribunal determines that reimbursement is not appropriate and so the award, while expected to be commonplace, will not be automatic.

When is the fee payable?

The basis of the fee structure is that fees are paid in advance.

Click here to view table.

What if a person cannot afford to pay the fee?

The HM Courts & Tribunals Service remissions scheme (which currently applies to proceedings in the civil courts in England and Wales) will be extended to protect access to the tribunal for those who cannot afford to pay a fee.

As a general rule, everyone is deemed to be able to pay unless they demonstrate (by way of an application through the remissions scheme), that they are unable to do so. In the event that a remission application is successful, the whole (or any part of) the fee will be waived.

Schedule 3 of the draft Order sets out details of the remission system which is currently the subject of a Government consultation proposes a two-stage test based on the claimant's disposable capital and monthly income.

What happens if the fee is not paid?

In the Government's letter to stakeholders, it states that the sanction for non-payment of issue and hearing fees are that the claim will not be allowed to commence or continue in the tribunal. However, this is not set out in the draft Order itself. Presumably this will be dealt with in the amended Tribunal Rules.

The draft Order does, however, provide that where a fee in a multiple claim is unpaid, a member of the fee group can, before the date the claim is to be struck out, opt out of the group and pay the fee as if they were a single claimant.

In the Stakeholder Q&A, the Government also states that it will be made clear that there will not be any extension to the existing time-limits for making claims for claimants needing more time to get the money to pay fees/complete the remissions forms.

Under the fees remission system, an individual who is found to have been entitled to have had fees remitted after a fee has already been paid, will be entitled to a refund.

How will fees be paid?

Fee payments can be made via an online service or through a centralised processing centre (one in England & Wales, and one in Scotland). Local Employment Tribunal or Employment Appeal Tribunal offices will not have the facilities to take fees, handle cash/cheques or undertake any additional banking functions.

Remission applications will be centralised within the centralised processing centres.

When a claimant submits an online ET1, the issue fee will need to be paid online via a debit/credit card. Alternatively, the ET1 can be presented to the appropriate central office by post (and all cheque payments and remission applications will be handled there). Only once the fee has been paid, or remission approved, will the ET1 be routed to the appropriate office for onward vetting, service and processing.

Because there is no capability to lodge an appeal to the EAT online, appeals will continue to be sent to an EAT office (without payment), and a notice to pay will be issued, which may be paid online or by cheque to the central processing centre.

Transitional provisions

Only claims made to the employment tribunal on or after the implementation date will attract fees. Any claim in the system before fees are implemented will not attract tribunal fee payments. So, a claim issued on the day before fees are introduced would not attract a hearing fee even though the hearing date is after the implementation date. However, should an appeal subsequently be made to the EAT, the EAT fees would be payable.

Appeals lodged with the EAT before implementation will not attract fees. So any appeal in the system before fees are implemented will not attract a hearing fee even though the hearing date is after the implementation date.

When will the fees regime be implemented?

Implementation of the fees regime is scheduled for the end of July 2013, subject to the necessary IT systems and administrative processes being in place. So watch this space!