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 ofresponses110. Whilst this fee attracted fewer comments, most came from business who feltthat either it was an administrative process that cost little, that should beshared with the claimant or that it was the claimants fault and that it wasbeneficial to all parties to ensure finality was brought to the proceedings.Our consideration of responses111. It takes administrative and judicial resource to complete the work needed tohave a case formally dismissed. As our policy is to charge for all processes,the cost of this application would need to be borne in other fees if this fee isremoved.112. The fundamental review of fees (led by Mr Justice Underhill) 14 is considering arule change in to ensure that when a withdrawal is accepted by theemployment tribunals an automatic notice of disposal will be issued, meaningthat a further dismissal notice/order will not be required. We will also need tofurther explore ensuring there is finality following settlement also, but it may bepossible to ask the claimant to withdraw the claim following settlement whichwould make charging for a dismissal application redundant.113. We maintain the proposal that these applications will attract a fee, but willreassess the proposal following the reporting of Mr Justice Underhill’sfundamental review of rules.Application for Review Application and Application for setting aside of a DefaultJudgement114. In the consultation we proposed a fee for an application for a review of adecision (payable by the party who made the application) and a fee for makingan application to set aside default judgement (payable by the respondent.115. Respondents opposed these fees when they were made as a result of anadministrative error by the (e.g. serving the wrong address) or where theemployment tribunal needed to correct its own error. In those circumstances itwas argued by respondents that it would be unfair for a party to pay for theapplication, but equally unfair for the opposing party to have a fee award madeagainst them when they were also not at fault. Trade unions and other groupswere generally in favour of a fee payable by the respondent to set aside adefault judgement.Our consideration of responses116. We propose to retain both these fees. An application for review can be madeon the grounds of administrative error as well as other grounds such as newevidence coming to light or on the basis of the interests of justice. A tribunal oremployment judge may also, on their own initiative, review a decision on thesame grounds on which the parties themselves may seek a review, which14 Terms of reference available here: www.bis.gov.uk/assets/biscore/employment-matters/docs/f/11-1379-fundemental-review-employment-tribunal-rules-terms30
Charging Fees in Employment Tribunals and the Employment Appeal Tribunal Summary ofresponseswould not attract a fee. In other cases the application for the employmenttribunal to review its decision removes the need for the party to appeal to theEAT, which is more expensive.117. We understand that the criteria for an application for review maybe changed asa result of the fundamental review of rules, so we will keep this under review.However, at this stage of the rules development the proposals seemcompatible with our suggested approach.Counter-claim118. From the additional fees proposals, the fee proposed for counter-claims wasmost commonly agreed with and not argued against with any weight. Themajority of business respondents seemed to recognise that to charge for aclaim but not a counter-claim would be unfair.Our consideration of responses119. We therefore propose that the fee of counter-claim remains. We will considerwhether, if the breach of contract claim made by the employee is withdrawn,and the counter-claim proceeds to a hearing whether it is appropriate to seek ahearing fee from the employer.Question 9 – Do you agree that mediation by the judiciary should attract aseparate fee that is paid by the respondent? If not, please explain why.120. In employment tribunals mediation by the judiciary is available in some limiteddiscrimination and unfair dismissal claims. The proposal that the fee formediation by the judiciary was paid by the respondent was the exception to theprinciple that the party who seeks the order pays the fee. We proposed this onthe basis that in employment disputes the cost of mediation, if providedexternally, is normally borne by the respondent.121. 34 respondents agreed with the proposal to charge for judicial mediation with61 disagreeing. Over 75% of business responses disagreed with charging forjudicial mediation. Those in support were mainly judicial or groups representingviews of claimants, some of those in support advocated a lower fee thanproposed. Ten respondents argued that the fee should be shared equallybetween the claimant and respondent so as to encourage joint participation.122. Those who disagree argued that:The fee was too high;It would discourage respondent participation if the fee was entirelyborne by the respondent;It would act as a general deterrent to the use of mediation;31
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Charging Fees in Employment Tribunals and the ... - Ministry of Justice

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