A Box Ticking Exercise

tick-box Rule 11(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 requires that “The Tribunal shall reject a claim if it is not accompanied by a Tribunal fee or a remission application.”

In other words, since the since the introduction of employment tribunal fees if a claim is made but that claim is not accompanied by either the relevant fee or an application to HMCTS for a remission of that fee the claim will be rejected meaning the claim will not be heard.

Applications for a fee remission are normally completed on form EX160. Unfortunately, it is not open to an applicant to complete a form online; this means a claimant can submit a claim online but if they wish to make an application for remission they should tick the box stating this and send the EX160 from by post within seven days.

It is a needlessly complicated system, and one employer has recently tried to manipulate to argue a claim should be rejected. In Deangate Ltd v Hatley & Ors [2015] UKEAT 0389_14_2603 three claimants submitted an online ET1 one day before the limitation period for lodging the claim expired. However, the claimants did not pay the fee but stated that they would be making a fee remission application (which they did). However the EX160 was received by the Tribunal after the limitation period. The question, therefore, is whether the ET1 was, on the date of submission online, “accompanied by a  … remission application”.

As Langstaff P noted, ” If “ticking the yes box” did not amount to making an application this would have the unhappy consequence that in practice forms could be submitted online only by those with the funds to pay fees, and would disadvantage those who had internet access but no resources: but this, again, is not a necessary feature of the online submission of claims.”

In conclusion is was found that

Since it is not in dispute that each Claimant ticked the appropriate box, and my conclusion that to do so amounted to an application is one wholly of law, there is no other conclusion she could have reached.  Despite the considerable thought that Mr Pearson has put into his submissions, the appeal fails. It does so because I accept the Intervener’s argument that what happened in the case of each of the Claimants was that an application for remission of fees did actually accompany the claim, being made in the same online submission as the claim even if it was only fleshed out when Form EX160 was later sent in.

The decision is a welcome one but one, I am sure, that was taken with a good helping of pragmatism as it would have required HMCTS to completely rework its system. It is notable that the Secretary of State for the Ministry of Justice was invited to intervene in the case and it was the intervening Counsel’s arguments that was to prove decisive in the judgement.

For my part I cannot see how, given the tick box states whether the applicant ‘intends’ to make an application and the form by which this is done (the EX160) is not part of the application how ticking a box amounts to ‘an application’. That is not a problem with the legislation but with the pretty shambolic implementation of the remission process by HMCTS. Still, HMCTS will be thankful the President of the EAT has saved them some blushes (and,importantly, allowed claimants the opportunity to present their case).

Priced Out

A letter signed by the TUC’s Frances O’Grady and Len McCluskey of Unite among others calls for the scrapping of Employment Tribunal Fees:

Since July 2013, when the government introduced fees for anyone taking their employer to an employment tribunal, there has been a huge drop in claims. This is denying workers access to justice – and in particular women with discrimination claims. Official statistics show an 81% drop in claims lodged between April and June 2014, compared to the same time in 2013. All types of discrimination claims, for which a fee of up to £1,200 is now payable, have fallen: the worst affected being sex discrimination cases, which are 91% down. Even “straightforward” claims for unpaid wages attract a fee of £390, which may, in some cases, be more than the amount sought by the worker.

Despite ministers’ assertions that the change was needed to prevent unfounded and vexatious claims, no evidence has emerged that shows the drastic decline is attributable to the falling of such claims. On the contrary, evidence gathered by the TUC, Citizens Advice Scotland, Citizens Advice (England and Wales), the Law Society of Scotland and the universities of Bristol and Strathclyde shows that workers with genuine cases are being prevented from lodging their claims simply because of their inability to pay the fees.

This effectively means that a growing number of unlawful employment practices are going unpunished. When ministers say it’s not right that taxpayers should foot the bill for employment tribunals, they overlook the fact that the workers bringing claims are themselves taxpayers.

The government is currently reviewing its fees policy. It must, as part of this process, conduct a full equality impact assessment highlighting just how the charges are affecting workers bringing claims relating to sex, age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, and sexual orientation. Workers’ access to justice cannot be guaranteed while fees remain in place. The government must end this unfair and inequitable policy by abolishing fees at the first opportunity.

I fully endorse the appeal. Whilst I think the early conciliation moves are broadly a good idea – despite in my experience central government employers showing an absolute reluctance to conciliate – the introduction of fees have been disastrous for workers. I have certainly seen individuals with good cases, who have tried to resolve matters internally but failed, be dissuaded from pursuing their cases.

But one of the notable omissions from the letter is Dave Prentis, General Secretary of Unison whose union has again lost its most recent challenge to the fees system because, in the words of Mr Justice Foskett:

For my part, I would anticipate that if the statistics upon which reliance is placed in support of this application were drilled down to some individual cases, situations would be revealed that showed an inability on the part of some people to proceed before an Employment Tribunal through lack of funds which would not have been the case before the new regime was set in place. However, that assessment has to be seen as speculative until convincing evidence to that effect is uncovered.

I am sure they knew what they are doing but I have too say i am extremely surprised Unison did not try to demonstrate precisely the type of cases referred to. In any case, leave to appeal has been granted, here’s hoping it will be successful.

Reference: Unison (No. 2), R (on the application of) v The Lord Chancellor [2014] EWHC 4198