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Since July 2013, a claimant must pay fees to bring a claim to an Employment Tribunal. There is an initial £250 fee when submitting a discrimination claim, and £950 for having a hearing. Some people on benefits or on a low income are entitled to 'remission', which means they pay no fee or a reduced fee.
Fees are now payable for taking a claim to an employment tribunal, unless one is entitled to 'remission'.
There are two levels of fee, depending on whether it is a Type A or Type B claim. Equality Act claims (and unfair dismissal claims) are Type B, which is the higher fee rate. For these the claimant must pay:
There are some ways in which a fee may not be payable, or may be refunded:
There are also other fees for various types of application, and a fee (payable by the employer) for mediation by the judiciary. There are special rules for claims brought by more than one person, such as equal pay claims.
The number of employment tribunal claims has fallen dramatically since the introduction of fees. In the year to June 2013, employment tribunals received on average just under 13,500 single cases (ie cases brought by one person) per quarter. From October 2013, after fees were introduced, the number of single cases has averaged around 4,400 per quarter. Source: House of Commons library Briefing Paper, November 2016.
Also there are ongoing Legal challenges to tribunal fees, so far unsuccessful.
Fees can be waived or reduced for some people on benefits or low incomes.
From October 2013 the household's disposable capital (savings etc) is relevant, as well as income.
You need to pass both the capital and the income test (unless there are 'exceptional circumstances', see below). As regards capital, to get full remission on a fee of less than £1000 (normally any employment tribunal fee will be less than this amount), a single person with no children will need disposable capital below £3000. However if the claimant or their partner is aged 61 or over, there is a higher limit of £16,000. Some types of capital are disregarded, for example one's main or only home.
The claimant also needs to qualify from the point of view of the household's income:
You now don't need to send evidence of income unless asked for it. However if you're claiming on the basis of a benefit you have only recently started receiving (for example, in the last few days), the Department for Work and Pensions may not be able to confirm your eligibility when asked by the tribunal so you should provide a letter from the Jobcentre Plus. Also it is worth getting together documents to prove your savings and income in case the tribunal asks for them.
Even though not entitled to remission under the normal rules, you may be entitled to relief if there are 'exceptional circumstances'. Possible examples are given from page 28 in Court and Tribunal fees - Do I have to pay them, EX160A (on justice.gov.uk).
It is possible to appeal against a refusal to allow remission.
The rules are in the Schedule to The Courts and Tribunals Fee Remissions Order 2013, SI 2013/2302.
If the claimant is wholly or partly successful in their tribunal claim, the tribunal has power to order the employer to reimburse the fee to the claimant. The tribunal has a discretion whether to do this, but the intention is that the tribunal will normally order repayment if the claim is successful. The guidance in T435 now says 'The general position is that, if you are successful, the respondent will be ordered to reimburse you, but the tribunal has no power to order reimbursment of fees paid if you lose your case' (Employment tribunal fees for individuals, T435 (on justice.gov.uk)). For an example of a 2016 decision on repayment of Employment Appeal Tribunal fees, see Coletti v Borealis Driver Services, from paragraph 7, where the EAT awarded repayment of £1,800 out of £2,400 fees paid, to reflect the fact that not all the claimant's appeals were successful.
Where a settlement agreement is reached, that agreement will deal with the fee.
Even where the tribunal orders the employer to pay compensation and to repay the fee, the claimant bears the risk that the employer will not pay up. Employers often do not pay out compensation awarded, and an employer who does not pay the compensation owing will doubtless also not repay the claimant's fees. See Remedies: Enforcement: will I actually receive the compensation? which links to some research on non-payment of compensation awards published in November 2013. Also Unison says: "research commissioned by the MOJ in 2009 found that of those awarded compensation by the Employment Tribunal, 39% had received nothing from the employer 42 days after judgment. One year after judgment 31% had still been paid nothing" (Date set for justice over tribunal fees (link to www.unison.org.uk)).
UNISON have brought court proceedings for judicial review, arguing that the new employment tribunal fees are unlawful. The very large fall in tribunal claims (above) is an important part of its argument. The claim has so far been unsuccessful.
R (Unison) v. Lord Chancellor; Equality and Human Rights Commission (link to bailii.org) August 2015, Court of Appeal.
UNISON argued that the employment tribunal fees breach EU and British equality law. One argument is that UK discrimination law is largely based on European directives, and EU law requires that it must not be made virtually impossible, or excessively difficult, to exercise individual rights conferred by a directive. Another argument is that fees are indirectly discriminatory against women, who bring more discrimination claims.
The Court of Appeal has dismissed the claims, but the case is being appealed to the Supreme Court.
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© Allan Tyrer 1999-2016
Last updated 25th December, 2016
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