Remission fees in the Employment Tribunal….. a year on.

Debbie-Haskell-150x150So how does fee remission work? When an individual wishes to use the Employment Tribunal, (or the courts), a fee for its use is charged. A fee remission is a request for either full or partial waiver of those fees. To apply for fee remission an applicant must download a form from HM Courts and Tribunal Service website titled ‘Court and Tribunal Fees – Do I have to pay them?’ and to be eligible for either a full or part exemption of a tribunal fee both elements of a two limb test have to be satisfied.

Disposable Capital
If the applicant is part of a couple (even married but separated couples in certain circumstances), then they both must declare their disposable capital. Capital includes all savings of any kind, investments, stocks and shares with the guidance accompanying the form providing further suggestions on what has to be disclosed. An applicant’s main home and contents are excluded, as are their tools of the trade and money in any personal or occupational pension scheme.

If the disposable capital falls below the threshold linked to the fee payable to the tribunal then the applicant can move onto the second limb of the test assessing their income. As of writing where the tribunal fee is under £1,000.00 then the disposable capital threshold limit will be £3,000 for couples under the age of 60 years, and £16,000 for couples over the age of 61 years.

Income test
If the applicant’s monthly income falls below a certain threshold then a full or part remission will apply. There are two methods applied to test an individual’s financial means, referred to as Remission 1 and Remission 2 on the form. Remission 1 is linked to benefits and Remission 2 is linked to the applicant’s gross monthly income.

Remission 1 If the applicant is in receipt of certain benefits then they are automatically entitled to a full remission once proof of its receipt is given. These are:

• Income based JSA
• Income related ESA
• Income Support
• Universal credit with gross annual earnings of less that £6k
• State pension guarantee credit
• Scottish civil legal aid

Remission 2 Where the above does not apply, the applicant must show that their (joint if part of a couple) gross monthly income before tax and other deductions is between the monetary scales given below. A sliding scale is applied after the full remission threshold is reached and for every £10.00 of income over this, the applicant is required to pay £5.00 towards the tribunal fee. If the applicant’s gross monthly income is above the higher figure then no remission will be permitted.

Picture2

As you can see this form is not easy to use and the tests applied are far from straightforward so there is scope for the uninitiated to inadvertently overlook an element of capital or income without realising it. Applicants should take careful note that they are not just form filling here; the remission form contains a statement of truth which means that even an innocent oversight, if it leads to a remission that the person is not entitled to, could lead to an investigation for fraud. To re-enforce this, the form also contains a warning that a deliberate deprivation of assets by the applicant would be viewed as fraud too. Simply put if the applicant transfers an asset out of their possession in order to put themselves in a better position – such as becoming entitled to a remission, then they could face prosecution.

So, is this the ‘easy to use system’ heralded? A number of teething problems have been reported over the last year and some of the better publicised are:

1. How to submit the remission form
It is logical to assume that the remissions form would accompany the ET1 form however there is currently no facility for the remissions form to be submitted alongside the on-line Employment Tribunal claim form. Instead a link is provided, which takes the applicant to the general HM Courts and Tribunal forms site, where the remission form then has to be found and printed off before being posted to the Employment Tribunal Central Office in Leicester.

2. Time frames?
There are no express time frames anywhere in the form or accompanying guidance notes stating when the remission form and supporting evidence should be received, and given the difficulties in obtaining the documents required, it could be understood why some parties felt that they could delay. However, the Central Office in Leicester has gone on record to say that the evidence should arrive within 7 days of the ET application being submitted so it is therefore strongly recommended that the remission form be posted on the same day that the ET form has been submitted– with proof of postage of course.

3. Evidence

When remission fees were initially introduced certain, original evidence, was required with the form. This either lead to significant delays, with the forms shuttling backwards and forwards between individuals and the Tribunal central office, or created quite an obstacle for some applicants whose applications were rejected for lack of information. For example 3 months of original bank statements were required and original wage slips were also requested, which caused a stumbling block where the employee had left or was on bad terms with their employer. Even those applicants with a passport benefit (see Remission 1) faced difficulties as their evidence from the Department of Work and Pensions had to be less than a month old. As it can take up to and over 3 months for the Department of Work and Pensions to process an application, for those who had just applied for a benefit there was the real risk that the time limit for their Tribunal claim could expire first.

4. Delays
Some employers have reported receiving ET1’s a considerable number of months after they thought the time limits for a complaint being presented in the Employment Tribunal had expired. In one case the employer reported a 6 month delay between the aggrieved employee issuing proceedings in the Tribunal and them receiving the ET1; this being caused by a remission application and subsequent admission appeals.

This is clearly not the ‘fairer and easier to use’ system lauded. It has been somewhat reluctantly disclosed in parliamentary questions that between 29th July 2013 and 30 June 2014, around 6% of all claimants to the Employment Tribunal were granted their remission application which compares quite starkly to the governments estimate that 31% would be granted. From the 30th June 2014 some very under publicised changes were implemented to the remissions process and can now be found in the new Form ‘Court and Tribunal Fees – Do I have to pay them? Ex160a’ which includes the following:

• Original copies of documents are no longer required and the form even encourages the applicant to enclose photocopies.
• The exact amount of disposable capital is also no longer required to be disclosed with the applicant just has to indicate which relevant threshold applies.
• They will accept bank statements which are printed copies from online banking systems.
• Official letters from the DWP confirming an individual’s receipt of benefits can now be dated within the last three months.
• A clearer, simplified form is now at the front of the guidance, with references to the guidance notes.
• If a piece of information is missing they will endeavour to contact you rather than reject the claim.
Remission Appeals

There is no right to appeal a decision regarding remissions within the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893), however if your remission application is rejected, then the HMRC guidance booklet describes an internal appeal process. In the first instance the applicant can appeal to the Delivery Manager by the date set out in the Tribunal Offices rejection letter, explaining why they do not agree. They must provide the evidence originally issued with the application but are also permitted to enclose fresh evidence. This can be a boon if part of the initial rejection was due to the lack of evidence being enclosed originally, particularly if that evidence is now available. If this appeal is rejected then the applicant can then write to the Operations Manager following the same procedure as before. The Operations Manger’s decision is final and cannot be appealed.

Whilst there is a clear drop in the number of applications being made to Employment Tribunals, which as my colleague previously blogged, is being re-challenged by UNISON, this does not mean that the claims were spurious previously. All the early indicators are that aggrieved employees are turning to the county courts instead to settle their dispute. It may be sooner, rather than later before the government is forced to re- address this clear obstacle to an employee’s access to justice; UNISONs judicial review challenge is being heard as this blog is being published so we will just have to watch this space.

Take a look at our Employment Law Centre for more information about employee rights and obligations.