Employment lawyers argue the new tribunal fees will cause delays and cost employers more to end disputes
HR professionals and employment lawyers have been greatly frustrated by the way one of the biggest changes to the employment tribunal system in 50 years – the introduction of fees – took place on Monday 29 July. Sufficient time should have been allowed for tribunal staff to be trained, and the public given detailed guidance well in advance. In fact, there was poor preparation, late provision of guidance and misleading online advice. Guidance was only issued on Wednesday 24 July. The new ET1 tribunal application form, containing significant changes, first appeared on Thursday 25 July. The tribunal presidential guidance, confirming arrangements for Monday morning and essential for the correct presentation of claims, only appeared online on Friday afternoon 26 July.
From now on claims can only be presented online, or by post, or by hand during business hours and only to certain tribunal offices. It is no longer possible to fax, email or deliver a claim by hand out of hours to your nearest office. If the normal three-months-less-one-day time limit for lodging a claim expires over a weekend, the claim must be lodged online. But 14 per cent of people have never used the internet according to latest statistics; many more have no credit or debit card, and 1.54 million people have no bank account. Someone living in Penzance, for example, now has a 386 mile round trip to Bristol during business hours if they want to lodge a claim and pay the fee by cheque or postal order.
The Employment Lawyers Association recommended that the government should create a tribunal fees payment facility through the Post Office. This was ignored. The obstacles to lodging a claim may mean some employees give up. But it might also lead to an increase in union membership (unions are offering to pay the fees or make a loan available to members) or unofficial industrial action. There have even been suggestions of an increase in theft from employers or industrial sabotage as disgruntled employees try to get even.
There is a remission scheme for those who cannot afford tribunal fees. Those on means-tested benefits (such as Income Support or Job Seekers Allowance) or with a gross annual income below a specified threshold (currently £13,000 for a single adult, and £23,860 for a couple with two children) should receive a full remission. Partial remission is also possible. Since a dismissed employee’s finanical circumstances are likely to deteriorate as time elapses, claimants are more likely to lodge claims close to the time limit to try to qualify for a fee remission.
Employees dismissed with notice cannot claim Job Seekers Allowance for the notice period. Claims will not be processed and forwarded to the employer until the fee is paid or a valid remission application made. So HR managers who do not receive an ET1 soon after three months have elapsed since a dismissal, may well face a longer delay while the fees, or a remission, are determined. Claimants can also apply for the hearing fee to be remitted as well as the initial fee for lodging a claim, which may lead to adjournments where a remission is not processed in time.
Tribunals will be able to order respondents to refund claimants’ fees in a successful case. The new system is likely to cost employers more in the long run, as they will not be able to settle cases unless they agree to refund the fees as well. The cost of settling an unfair dismissal case will go up by £1,200 – the cost of lodging a claim - if it is not settled until after the hearing fee is paid.
Paul Statham is a partner and co-heads the employment department at solicitors Pattinson & Brewer. He co-chaired the Employment Lawyers Association’s response to the original consultation on the introduction of tribunal fees.
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