The Government recently confirmed that it intended to charge fees in Employment Tribunals and the Employment Appeal Tribunal (EAT) and has now issued a consultation paper (pdf) setting out its proposals on the system of fees, including its indicative fee levels. The Government is consulting on two alternative fee options - Options 1 and 2.
Under Option 1, claimants will be required to pay an Issue Fee of up to £250 when the claim is lodged followed by a Hearing Fee of up to £1,250 if the claim proceeds to hearing. Claims will be classified as Level 1, 2 or 3 depending on the type of claim (the more complex the claim, the higher the level – discrimination claims will, for example, be Level 3) and the level will determine the fee payable.
Under Option 2, only an Issue Fee will be payable by the claimant. This will be determined not only by the type of claim but also its value. Claims with a value of up to £30,000 will incur an Issue Fee of up to £600 (again the fee level will depend upon whether it is a Level 1, 2 or 3 claim). If the value of the claim is over £30,000, the Issue Fee is proposed to be a flat £1,750.
Where a claimant brings a number of separate claims within the same action, e.g. unfair dismissal and breach of contract, only one fee will be payable. This is set at the level of the claim that attracts the highest fee.
Options 1 and 2 also share a number of common proposals:
- There are 6 further fees for certain specified applications (e.g. a request for written reasons) made after the claim has been accepted by the Employment Tribunal.
- The HM Courts & Tribunals Service remission system (a scheme intended to ensure access for all to the Courts and Tribunals) will be available for those who need access to the Employment Tribunal or EAT system but cannot afford the fee.
- Tribunals will have the power to order that the unsuccessful party reimburse the fee paid by the winner so that the cost is ultimately born by the party who caused the Tribunal system to be used. The consultation document leaves unclear many of the details, perhaps because they remain to be resolved. For example, what if one of the claimant’s claims is upheld and others are dismissed? Or if the claimant scores a technical victory on liability but is awarded little or no compensation? Perhaps it is time to look again at the Calderbank principles relating to the rejection of reasonable offers, since it is often the party who does not settle when he/it should that actually takes up the Tribunals’ time. Presumably these issues could be wrapped up under a wide enough discretion on the part of the Tribunal, but some guidance would be helpful.
The consultation document also sets out indicative fees in relation to multiple claims (i.e. where there is more than one claimant).
In relation to the Employment Appeal Tribunal, the Government is proposing an Issue Fee of £400 when the appeal is made, followed by a Hearing Fee of £1,250.
The timing of the introduction of fee charging for Employment Tribunals and the EAT will depend on the option chosen by the Government. For Option 1 it will be 2013 but for Option 2 it will be 2014.
The closing date for the consultation is 6 March 2012.