This was written by Steven Eckett, employment lawyer at Bishop & Sewell LLP.

Employment Tribunal fees are scheduled to commence from July 29th 2013, for the first time ever.

There are going to be two types of claim attracting a minimum of two types of fee:-

• Firstly a ‘Type A’ claim for relatively straight-forward claims such as unlawful deductions of wages and holiday pay. These ‘Type A’ claims will attract an initial issue fee of £160, to be followed by a further hearing fee of £250 payable six weeks before the full merits hearing.
• The second and more common type of claim will be known as a ‘Type B’ claim typically for unfair dismissal, discrimination and whistle blowing claims. Here the issue fee will be £230 to be followed by a further hearing fee of £950 which again must be paid six weeks before the full merits hearing.

In addition further fees will have to be paid for example for any preliminary hearing (£100), EAT fees of £400 for an issue fee and £1200 for the hearing fees and any multiple claims will attract both higher issue and hearing fees.

The Employment Tribunal will also have the power to order an unsuccessful party to reimburse the fees paid by the successful party.

The Government’s purpose in introducing fees to the employment tribunal system is to weed out the many vexatious claims that waste the valuable time of employers and that have no chance of success as well as attempting to reduce the overall number of claims that are made.

It is also hoped that these measures combined with the proposals to increase the role of ACAS next year to attempt an initial period of compulsory mediation, will impact on the number of claims entering the system.

The counter-argument proposed by various employee bodies is that the introduction of fees is an attack on justice in itself and that it is simply not ethical to place tribunal fees on employees who have genuine complaints about their treatment at work and who as a result of losing their job are not in a position to fund such fees.

There is however some comfort for employees who genuinely cannot afford to pay the fees in that they can apply to HM Courts and Tribunal Services (HMCTS) to see if the whole or part of the fees can be waived. Currently an employee is entitled to a full remission of fees if they have less than £3000 in savings. This also includes any of their partner’s savings as well.

It is also likely that the scheme will require employees who are unable to pay any fees to provide supporting evidence of their means, and that those on benefits will qualify to have the fees waived and so will not be put off by these new proposals to pay fees. Clearly any decision will need to be confirmed before the expiry of the short limitation period and there are also concerns whether HMCTS will be expeditious in this respect.

Interestingly there have also been challenges to the legality of the introduction of issue fees in both England and Wales and Scotland.

In England, the trade union Unison has applied to the High Court of a judicial review of the Ministry of Justice’s decision to introduce fees. Unison’s general secretary Dave Prentis said that the introduction of fees would disproportionately affect women and others with protected characteristics especially those in the public sector and their introduction would be in breach of the Public sector equality duty. He also said that it would make it ‘virtually impossible’ for workers to exercise their rights under employment law and criticised the Government for putting a price on Justice.

In Scotland there has also been an application for a Judicial Review to the Court of Session on the legality of the introduction of fees in the employment tribunal which are generally lower than those in England (£87 issue fee and £207 hearing fee).

An initial decision was announced only today by the Judge in the Scottish Court of Session who has confirmed his refusal to grant an interim interdict which would have prevented the introduction of fees in Scotland, pending a full hearing on the matter.

Instead the Judge said that he believed that there was a strong prima facie case to go to a full hearing to determine the issue combined with an undertaking from the Lord Chancellor that any fees that are paid after 29th July will be fully refunded with interest if the new system in introducing fees is ultimately held to be unlawful.

The full Scottish hearing is likely to be heard before the end of the year but not in time to prevent the introduction of fees in Scotland or from impacting on the decision to introduce them in England and Wales which will now go ahead as planned at the end of the month.

It is highly probable that there will be a number of teething problems generated by the new fee paying system and it will be interesting to see what administrative and legal issues will arise.