The draft Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (the “Order”) has just been published by Parliament, giving us an insight into how the new Employment Tribunal fee structure will operate when it comes into force, expected to be this summer. 

Under the Order, Claimants will have to pay fees to the Employment Tribunal both to submit their claim, and for the case to be heard at a final hearing. Fees will depend on the type of claim being brought – the Order separates claims into ‘Type A’ and ‘Type B’ claims. ‘Type A’ claims are listed in the Order, and include breach of contract claims, claims under the Working Time Regulations, unlawful deductions from wages claims, and claims concerning the right to a redundancy payment. ‘Type B’ claims are all other claims, not listed in the Order, and so will include all types of discrimination claims, and unfair dismissal claims.

The proposed fees are as follows:

Click here to view table.

Fees are charged per case, even where a case is made up of a number of different individual claims (meaning a single claim containing allegations of unfair dismissal, sex discrimination and unlawful deductions from wages will cost £250 to lodge – the price of a Type B claim).

Group actions attract their own increased fees, depending on the number of Claimants in the group.

But employers should be aware that the new fees are not for Claimants alone – employers might find themselves having to pay as a case proceeds. For example, if a judicial mediation is requested, it is the respondent who will have to pay the associated fees – and at £600, these are not insignificant. 

Further fees will be payable by a party who makes certain applications during or following the case – for example it will cost £100 to request a reconsideration of a default judgment, and £60 to make an application for the claim to be dismissed following the Claimant’s withdrawal. Respondents could find themselves paying such fees, therefore, even where a case never made it to hearing. And of course, fees are payable to appeal a judgment – an employer dissatisfied with a judgment against it will have to pay £400 to lodge an appeal at the Employment Appeal Tribunal, and a further £1200 before that appeal will be heard.

And although Claimants may benefit from provisions in the Order which reduce or eliminate the fees if they are in receipt of certain benefits (such as Jobseeker’s Allowance), or have a low annual salary, or have a monthly disposable income of under £210, similar provisions don’t apply to companies, and so it appears that Respondents will have to meet any fees for which they are responsible regardless of their economic circumstances. There is provision to waive fees in ‘exceptional circumstances’, regardless of who is the paying party, but we have no guidance on what such circumstances might be.

Similarly, the Order does not give us any details on what will happen if individuals don’t pay the requested fees, nor does it indicate how such fees will be paid, or what will happen if the fees for a hearing are paid and then the case settles. All such details are expected to be ironed out before the summer.

We wonder, though, if we will see more (not less) litigation arising out of the new arrangements – just as lengthy litigation is fought on the subject of claims being lodged just minutes out of time, will we now see Claimants whose cheques haven’t cleared on time argue that their claim should be allowed to proceed anyway?