Employment Tribunal Fees - Reducing the rising tide of Employment Claims?

As you will be aware, as from 29th July 2013 Claimants will need to pay a fee before issuing a new Employment Tribunal claim. Also, new rules of procedure came into place to simplify proceedings which had previously been criticised for not being easy to follow or user friendly. I will write more about the rules of procedure in due course but first of all, I would like to say a little bit about the new fees.

The fees are controversial in that they could appear to be prohibitive and would on face value, prevent those most in need from accessing justice.

In short claimants will need to pay £250.00 to issue a claim and £950 around six weeks before the hearing date for claims of unfair dismissal and discrimination. In less complex and straightforward claims the initial fee will be £160.00 and £230.00 to have the claim heard at a hearing.

There are of course two Judicial Reviews in play challenging the governments ability to charge fees which will be heard later this year and we eagerly await the results.  This being said however, I have been asked as to whether or not I think claimants will be put off under the new fees regime. Personally I do not think they will and the new fees will do little to stem the flow of claims being made. This is for the following reasons:

1. For those unfairly dismissed and who have lost their jobs, they will probably be able to claim a full remission against the fees payable. 
2. Those who can demonstrate a low income (disposable) will be entitled to some remission against fees.
3. Those who have higher value claims or more highly paid employees are unlikely to be put off with the fees payable.
4. If claims are settled, then no doubt respondents will be asked to cover the fees in any settlement or COT3 agreement.

In my view the fees in place will do little to cut the claims culture although admittedly those with vexatious claims might be prepared to take another view if they are made to pay to play.

I think in summary, the changes that have most impact arising from July 29th are those relating to the procedural rules which have simplified matters considerably for parties before the Employment Tribunals.

I regularly appear at Employment Tribunals and have represented claimants and respondents and I do not see the need for my expertise dwindling anytime soon. If you need Employment Law advice or help with Employment Tribunals please do not hesitate to contact me on 07716 346 708.

Employment Update - New EAT Rules of Procedure.

The 1993 EAT Rules have been amended in the Employment Appeal Tribunal (Amendment) Rules 2013, ahead of the introduction of the government's new fee regime for enforcing employment rights. The amendments come into force on the same day - 29th July 2013.

There are a few main changes which are as follows:-

1. There is a removal of the right (pursuant to rule 3(8) of the old EAT rules) to submit a fresh Notice of Appeal within 28 days of the original Notice of Appeal being rejected by an EAT Judge (at the 'sift stage') on the grounds that the appeal does not have reasonable prospects of success.
2. The end of the automatic entitlement to an oral hearing (a 'rule 3(10) hearing' after the sift stage, where the Appellant wishes to challenge the assessment of an EAT Judge that the Notice of Appeal discloses no reasonable grounds for bringing the appeal. Now if an EAT Judge considers that an appeal is "totally without merit" he can order that a party is "not entitled to have the matter heard before a Judge" at a rule 3(10) hearing.
3. A similar amendment in respect of cross-appeals, again if an EAT Judge considers that the statement of grounds of cross-appeal is "totally without merit".
4. Given that the law reports are full of appeal cases which, although ultimately successful, were initially rejected at the sift stage by an EAT Judge, the above three amendments are deeply troubling.
5. A new mechanism for challenging a decision by a Registrar to strike out your appeal on the basis that you haven't paid your EAT fee, when in fact you have paid it but the new "centralised processing facility" hasn't informed the EAT that you've paid it, or has lost your file etc. Appellants will be able to apply endlessly (there is no time bar or restriction on the number of times you can apply) to a Registrar to have their appeal reinstated pursuant to the new rule 17A(2).
6. However, whilst the new rule 34A(2A) provides that the EAT can order a Respondent to a successful appeal to reimburse the Appellant in respect of the EAT fees, the rules do not provide for a situation in which it is not the parties fault that they are in the EAT, but the fault of the Employment Tribunals Service because the parties had a dud Employment Tribunal. In these cases, the parties will simply have to try and recover their wasted costs and fees directly from the Ministry of Justice.

Thanks to Daniel Barnett for bringing this to my attention.

July 2013 - Employment Update

There are a number of changes being introduced towards the end of this month which you need to be aware of.

 

Employment Tribunal Fees

 

Despite the applications for Judicial Review the fees will go ahead on 29th July 2013. These are as follows:

 

1. Level 1 fees for simpler claims will be £160 (issue) and £230 (hearing).  
2. Level 2 fees for more complex claims including unfair dismissal, discrimination and equal pay will be £250 (issue) and £950 (hearing).

New Employment Tribunal Procedures

 

New employment tribunal rules of procedure will be introduced, following Mr Justice Underhill’s review of the current procedural rules. The new rules are intended to simplify and streamline the tribunal process and cut costs. The new rules will come into force on 29 July 2013.

 

Settlement Agreements

 

The Government's proposals for facilitating the use of settlement agreements are expected to come into force on 29th July 2013. Employers will be able to offer a settlement agreement at any time, irrespective of whether there is an existing dispute, with neither party being able to refer to the fact that an agreement has been offered in subsequent unfair dismissal proceedings should an agreement not be reached, unless there has been "improper behaviour."  ACAS has produced a guidance note to help employers understand the new confidentiality rules that will come into play.

 

Compensatory Award Cap

 

A cap on the compensatory award of one year's pay will be introduced on 29th July 2013.  The current statutory maximum will apply, if one years pay is lower than the statutory maximum.

 

If you need assistance on any of the above then please contact us on gda@garydarmstrong.com

 

Employment Law Blog Developments

I hope you are finding our posts useful and informative and that they help you whether you be an employer or employeee.

Given my busy practice spanning London, Manchester and Edinburgh and everywhere inbetween its not often I get to tell you a little more about my firms capabilities and achievements. As you might know, I am an experienced Employment Lawyer and experienced advocate before the Employment Tribunals and Employment Appeal Tribunals.  I have been involved with a number of matters of late which have been successfully brought to conclusion.

I recently acted for a Pharmaceutical Company based in the South of England - the matter involved a sex discrimination claim arising out of maternity. The matter involved drafting the questionnaire and defending the Employment Tribunal proceedings. This was one such matter that involved a very robust defense and the tactical position of offering no money. The matter was withdrawn by the claimant without any settlement from our client.  Naturally given that the case had no reasonable prospects of success, our client was no doubt very relieved and happy with the outcome.

I have also recently acted for a Claimant who was subjected to a long sustained campaign of sexual harassment and eventually her unfair dismissal. The matter was incredibly complex dealing with four potential respondents and the overlap between the Sex Discrimination Act 1975 and the more recent Equality Act 2010. It also dealt with the issue of potential third party harassment and furthermore the vicarious liability of employers in such circumstances.  This involved two hearings and eventually the parties lawyers including myself reaching an amicable and positive solution for all.  It did appear for a while however that the parties were so far removed, a chance of settlement (which was in everyone's interests) was becoming less likely.  It is in these moments when the tenacity of your legal representation should come to the fore driving forward towards the best possible result.


EMPLOYERS
For Employers we have a dedicated Helpline where we can be contacted to discuss in brief form the issues you might be facing. I am available directly to speak to you on 07716 346 708 - I am available 24/7/365 via email on gda@garydarmstrong.com

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Evidence and DDA Claims

This case concerns whether an Employment Tribunal has jurisdiction to strike out a Disability Discrimination Claim on the basis that a Claimant has failed to attend an appointment with the employers nominated expert.  The EAT decided in GCHQ v Bacchus it can, providing the party seeking the order is sufficiently disadvantaged by the non compliance and an unless order is made beforehand.

The facts were that the claimant refused to attend an appointment with the employers nominated expert and sought only to rely upon their own expert. The employer applied to have the claim struck out which was refused by the Employment Judge.

HHJ Richardson (Presiding) held that the Employment Judge was wrong and stated at para 21 of the judgement:-

"The Employment Tribunal Rules to which we have referred endow Employment Judges and Tribunals with ample power to case manage the obtaining of expert evidence if such evidence is required for the just disposal of the proceedings".

 

He went on further to hold at para 45 of the judgement:

 

The question which the Tribunal ought to have considered is whether in the circumstances GCHQ was unable properly to prepare its case without instructing an expert.  This was the critical question, as Lane v Willis shows. Although the Tribunal identified this question in its reasons, it did not answer it; and we think if it had answered the question, it would have been bound to conclude that GCHQ was significantly disadvantaged if it could not instruct an expert.
 

The EAT went on to reiterate some further guidance from the authorities in terms of medical evidence and made an Unless Order forcing the claimant to comply with the original obligation to attend the appointment with the medical expert.

In our view this would be a case which is quite fact sensitive; The Employment Tribunal would have first needed to establish that expert medical evidence was needed for a fair disposal of proceedings and the the Employer (Respondent) would need to be sufficiently disadvantaged by the Claimants non compliance/non cooperation.

In either breath, the message from this case is that Employment Judges have a duty to establish fairness and a level playing field in accordance with the Overriding Objective and have a wide discretion in terms of Case Management Orders.

It also establishes that where medical evidence is needed in disputed disability claims, the parties will need to comply with Case Management Orders in the spirit of fairness and transparency. To refuse to do so could be fatal to any case of Disability Discrimination.

Unpaid Work Scheme - Not Slavery

Is it slave labour and therefore unlawful to force an individual in receipt of Job Seekers Allowance ("JSA") to participate in a Work for Benefits scheme?

No, says the Administrative Court in
R (on behalf of Reilly & Wilson) v Department of Work and Pensions.

As you might already be aware, Article 4 of the European Convention on Human Rights prohibits slavery, servitude and forced labour.

Controversially the Government in an effort to help recipients of benefits back to work, individuals were required to participate in schemes that involved them working but not being paid anything more than benefits. A failure to participate in these schemes can and could have resulted in a loss of benefits.

In the instant case Miss Reilly was a geology graduate who was required to work in Poundland for two weeks. Mr Wilson was a HGV driver who was required to work for an organisation delivering refurbished furniture to the needy in the community. His placement was to be for 30 hours per week for a period of 26 weeks.

Both claimed this amounted to a breach of Article 4. The Court held that although views may reasonably differ about the merits of a scheme that requires individuals to 'work for their benefits' as a means of assisting them back into the workplace, such schemes could not be said to amount to 'slavery' or 'forced labour'.

Employment Tribunals Fees In Place 2013

The Government have announced that fees to start and hear claims before the Employment Tribunals will be in place in 2013. The nominal claims such as unlawful deductions will cost £160 to start and a further hearing will cost £230.00 whereas all other claims such as unfair dismissal will cost £260.00 to start and £950 for a hearing.

The official press release is here

The original rationale behind the fees (which was to reduce vexatious claim) has now been abandoned and instead the Government are now suggesting it is reduce the cost of the Tribunal system on the tax payer. 

If you are considering or being faced with litigation please do not hesitate to contact me on gda@cheshirelawassociates.com or 07716 346 708.