This month sees the first anniversary of the introduction of fees to bring a claim in the employment tribunal, which came into force on July 29, 2013. The effect of fees has been significant; in the first three months after their introduction, the number of claims was down by 79% compared to the same period the year before. The second three months fared slightly better with a drop of 58%, but there is little evidence of a further upward trend.
Litigants have to pay an issue fee to bring their claim, of either £160 for Type A claims, which include claims for wages or redundancy payments, and £250 for Type B claims, which include unfair dismissal and discrimination complaints. If the case is not resolved through negotiation and the case has to be determined at a hearing, a further fee is incurred, of £230 for Type A claims and £950 for Type B claims. Different fee structures apply to claims brought by a group of employees. Generally speaking, a successful claimant will be able to claim these fees from their employer if they are successful, but not otherwise.
Although a fee remission process was set up at the same time, it was far from simple and many people inadvertently fell foul of the quite complex rules. At the end of June 2014 the Ministry of Justice (MoJ) produced a new, simplified application form, and also relaxed some of the more stringent rules on the provision of evidence to support an application. Remissions can be made on one of two grounds; if an individual is in receipt of one of the listed benefits, then they are eligible for a full fee remission – such benefits include income based jobseeker’s allowance, income related employment and support allowance and income support. If not, then in order to obtain a fee remission they need to show first, that their family’s disposable capital is less than £3,000 and that their gross monthly income is below a certain threshold, which differs depending on whether they are single or have a partner, and how many children they have. If the threshold is met, then a full remission will follow, although there is provision for part remission if the monthly income is only slightly above the threshold.
The introduction of fees was not without its critics. Unite, the UK’s largest union, launched a judicial review challenging the Government’s decision to introduce fees. That was unsuccessful in the High Court in February, but they have now appealed to the Court of Appeal who have decided to expedite the hearing. In the mean time, the MoJ is due to announce a review into fees.
So in the mean time, what is an individual who is not entitled to a fee remission, but would struggle to pay the fees, to do? If you are a member of a union, it is worth checking to see if they would be willing to fund your case, either by the payment of the fees or even providing representation. One often overlooked means of funding is via your home insurance policy. Many policies include legal cover as standard, others will offer them as an add-on. If your policy does include this then it is worth making an application to see if they consider the merits of your case are sufficient to provide funding for both the fees, and possibly for legal representation. In the last year there have also been a number of companies offering insurance to cover the cost of tribunal fees, with the premium only payable if the claim succeeds.
Alas there will inevitably be people who do not meet the criteria for fee remission, are unable to secure any of the funding options mentioned above, but who would nonetheless struggle to find the money to pay the fees. Unless and until either the Court of Appeal find in favour of Unite, or the Government reduces the fees, they are the unfortunate victims of the current austerity measures resulting from this country’s financial deficit.
Safia Tharoo, Barrister, 42 Bedford Row, London