As we have reported in our editions of HR Headlines throughout 2013, there have been significant developments in employment tribunal procedure. A new set of Employment Tribunal rules were introduced in July which coincided with the introduction of a new fees system. 

New Employment Rules of Procedure

As we reported in our July and September 2013 issues of HR Headlines, new rules govern employment tribunal practice and procedure across England, Wales and Scotland. They were devised following a review of the current system by Justice Underhill, a former President of the Employment Appeal Tribunal. The aim was to reduce the burden on the tribunal system, to speed up the process and to cut red tape. 

In practice, the impact of the rules to the HR community is likely to be small. However, an important change to be aware of is the introduction of a new 'sifting stage' triggered when a claim is submitted. 

It is now the case that, at the very outset, every case will be reviewed by an Employment Judge on paper to confirm (i) if there are arguable complaints and defences within the Tribunal's jurisdiction; and (ii) that the case has a reasonable prospect of success. As this process will be conducted without the involvement of the parties and on the papers only, it is now even more important that both the ET3 form and accompanying grounds of resistance are drafted carefully with as much detail as necessary. 

Under the new rules, Case Management Discussions and Pre-Hearing Reviews have been replaced with a simpler consolidated Preliminary Hearing. It will no longer necessary to attend a number of small hearings prior to the substantive hearing (in applicable cases) as all case management issues and any preliminary applications will be dealt with together at the consolidated Preliminary Hearing stage.

Introduction of Employment Tribunal Fees

The new fee regime for issuing and hearing claims in the Employment Tribunal ("ET") and Employment Appeal Tribunal ("EAT") came into force on 29 July 2013. 

The fee payable for claims in the ET will depend on whether the claim is a Level 1 or Level 2 claim. Level 1 Claims are lower value claims for sums due on termination of employment, such as redundancy payments, unpaid wages and payments in lieu of notice. Level 2 Claims include all other claims, for example unfair dismissal, discrimination, equal pay and whistleblowing.

Click here to view table.

Different fees apply where there are multiple claimants with the issue fee ranging from between £320 and £1,500 and hearing fees ranging between £460 and £5,700. Similar fees as those above apply to claims issued in the EAT. Where a Claimant has limited funds, or is in receipt of certain benefits, he or she will not have to pay an issue or hearing fee. 

It is not just the Claimant who may be liable for to pay a fee: if a Respondent wishes to make the following applications; the stated fee also needs to be paid:

  1. Application to set aside default judgment - £10
  2. Application for judicial mediation - £600
  3. Application to dismiss a claim following settlement  or withdrawal - £60
  4. Breach of contract counter claim - £160
  5. Application for review of an Employment Tribunal decision or judgment - £100 (Level 1 Claims) £350 (Level 2 Claims)

Since the introduction of the fees, the Ministry of Justice has published some statistical information showing employment tribunals' receipts up to September 2013. Interestingly, the number of claims prior to the introduction of the fees stood at 4,421 in June 2013 and then fell dramatically to just 1,117 in September 2013. Therefore, the evidence (albeit at an early stage) suggests that the implementation of the fees has had the desired effect of reducing the number of issued claims and lessening the burden on the Employment Tribunal system.

The introduction of fees caused discontent amongst Trade Unions. In June 2013, UNISON confirmed that it was lodging an application in the High Court for judicial review of the introduction of fees. UNISON argued, among other things, that charging fees would have a disproportionate impact on women and thereby amount to indirect discrimination. The High Court heard the full case in early November 2013 and the outcome is awaited. If UNISON is successful the Government has pledged to repay all fees already paid.