Charging Fees in Employment Tribunals and the ... - Ministry of Justice

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Charging Fees in Employment Tribunals and the Employment Appeal Tribunal Summary ofresponsesThirdly, parties also pay for every type of applications they seek (e.g. witnesssummons) which is a variable amount and adds to the cost. Finally, partiesopen themselves to different cost regimes in the civil courts whereas theliability to pay the costs of the other party in employment tribunals is morelimited.84. We also do not consider that there is a significant risk of cases beingtransferred to the civil courts in England and Wales or the Sherriff court inScotland because:Most jurisdictional complaints that can be dealt with in the courts will beassociated with complaints that can’t be transferred. For example,equal pay claims can be dealt with in both the employment tribunalsand the courts, but will often be associated with a discrimination claimwhich can only be dealt with at the Tribunal;By issuing in the courts, claimants will open themselves up to widerliability in terms of costs if they were to lose the claim; andThe differing cost structure in the civil courts where, for example,interlocutory fees are chargeable, means that depending on the valueof the claim, fees will not necessarily be lower than in the employmenttribunals.A4. Power to order reimbursement of fees85. We proposed that the employment tribunal is empowered to make an orderthat fees paid by the successful party will be reimbursed by the unsuccessfulparty. This is on the basis that it ensures that the party who ultimately causesthe employment tribunal to be used bears the cost. We made no proposal as towhether there should be a presumption that an order would be made and saidthat the power would ensure that the employment tribunal has discretion not tomake an order in appropriate circumstances. We also proposed that it was amatter for parties to take the payment of any fees into account duringsettlement negotiations as the employment tribunals do not intervene in thearrangements reached in such agreements. Comments for both Options aredealt with under question 6.Question 6 – Do you agree that it is right that the unsuccessful party shouldbear the fees paid by the successful party? If not, please explain why.86. Around 75% of all respondents were in favour of a discretionary provisionallowing the employment tribunals to order unsuccessful parties to pay thesuccessful party any costs that they had accrued by way of employmenttribunals fees.87. Of those that disagreed, the key arguments were:24
Charging Fees in Employment Tribunals and the Employment Appeal Tribunal Summary ofresponsesThe claimant should not be required to pay any of the Respondent feesas they are on a different footing and will likely have paid issue andhearing fees of their ownRemitted claimants should not be required to pay any respondent feesSeems likely to cause a wholly disproportionate concern to both parties,with the question of who ought to be responsible for fees creating abrand new area of settlement negotiations.There is a relatively much greater risk for claimants than respondentscreating further inequality of arms.It will lead to inequality between claimants as those with full remissionof fees will be under less pressure than those on low incomes who donot qualify for remission.This is an unnecessary complication. Given that the introduction of feesis proposed in a stated climate of encouraging conflict resolution, it willonly enhance the adversarial nature of the system, meting outretribution to losers.88. Also raised by some respondents was the issue of enforcement of awards, ofwhich large amounts currently go unpaid, and adding a fee onto the amountdue could exacerbate the problem.Our consideration of responses89. We do not believe that this provision adds unnecessary complication into theprocess. We believe it is right that the party who ultimately causes theemployment tribunals to be used should bear the cost. However, we recognisethat there may be circumstances in which it is not appropriate for such anaward to be made and that the employment tribunal judge is best placed tomake a determination, so the provision will not be an automatic one.90. It is intended that the employment tribunals will have the power to make suchan award at any point at which they make a decision on an application thatattracts a fee. We will consider whether to provide for the tribunal to makeprovision for an order at interlocutory stages for example when an applicationfor a review or to set aside default judgement is made. We do not accept thatonly having a power for reimbursement creates a much greater risk forclaimants than respondents. It will be for an employment judge to decidewhether it is appropriate to require a claimant to reimburse any fee(s) paid bythe respondent, and the claimant will have the opportunity to argue why theyought not to. We will work closely with the judiciary to develop guidance forjudges ensuring a consistency of approach.91. We do not accept that the power to order reimbursement will create adisproportionate area of concern in settlement negotiations. Settlementnegotiations already discuss liability and financial considerations and this willbe another matter for parties to take into account. It will be up to the parties to25
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