1. Fees

For the first time, fees are now payable in the Employment Tribunal. There are two levels of fees which will depend on the type of claim being brought:

  • For straightforward claims such as a redundancy payment or holiday pay, the issue fee is £160 and the hearing fee £230.
  • For more complex claims such as unfair dismissal or discrimination, the issue fee is £250 and the hearing fee £950.

If a Claimant fails to submit the issue fee with their claim form before the time limit to bring a claim expires, they will lose the right to bring the claim. Claimants who are unable to meet the fees because of their personal circumstances can apply for full or partial remission.

There will also be fees for making applications to the Employment Tribunal: (a) for review of a default judgment; (b) for review of a final judgment following full hearing; (c) to dismiss a claim following settlement; (d) for an "employer's contract claim" (a counter-claim); and (e) for judicial mediation. Fees will have to be paid by the party submitting the application.

  1. Employment Tribunals rules of procedure

There has been an overhaul of the Tribunal's rules of procedure giving Employment Judges wider case management powers. The changes have been largely welcomed but time will tell how much of an impact they will have. The full scope of the changes is too far-reaching to set out in full in this e-bulletin, but by way of illustration, we set out two key examples below:

  1. The introduction of a "sift stage". Once the claim form and response (defence) have been received by the Tribunal, an Employment Judge will consider the papers and decide whether the whole claim or part of it should be struck out for having "no reasonable prospect of success". If this power is exercised correctly, this would be highly beneficial to the Respondent, particularly from a costs point of view, if a claim is struck out without the need for preparing a response or attending any hearing.
  2. There will no longer be separate case management discussions (CMD) or pre-hearing reviews (PHR). These have been replaced by a single "preliminary hearing". Currently a CMD deals with administrative matters such as setting a timeline for steps to be taken in preparation for the full Tribunal hearing. However, certain matters cannot be dealt with at a CMD, for example requesting a deposit order or determining a preliminary matter relating to the proceedings, such as whether a Claimant has a disability. Currently, a PHR is needed to deal with these more complex matters. We anticipate that a single preliminary hearing will be more efficient and will reduce costs for our clients.
     
  3. Compromise agreements

Compromise agreements will be renamed "settlement agreements". The change is in name only and not to the substantive content of the agreement itself.

  1. Pre-termination negotiations

The concept of "pre-termination negotiations" is introduced. This permits employers to make an offer or have a discussion with an employee about the termination of their employment and any proposals for settlement terms, provided that there is no "improper behaviour". This means that employees will not be able to refer to such offers or discussions in evidence if they bring an Employment Tribunal claim. However, employers should take note that this applies only to cases of unfair dismissal and not, for example, to any discrimination claims.

Many employers have welcomed this change but in our view there are some serious questions as to how effectively it will work in practice. For example, difficulties could arise where multiple claims are raised and employees allege discrimination and/or breach of contract at the same time as unfair dismissal. In this case, pre-termination negotiations could be referred to in Employment Tribunal proceedings (subject to the current "without prejudice" rules).

What if an employee raises a grievance about the offer or discussion itself? If an employer fails to deal with it, can the employee then claim constructive dismissal? Our advice is that whilst this will be a helpful tool in some situations, employers should proceed with caution!