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01 June 2015

Employment tribunal rules of procedure: fee remission applications

Since 29 July 2013, a fee has been payable by a claimant when an ET1 claim form is presented to an Employment Tribunal (ET), unless the claimant intends to apply for remission of the fee. The form requires the claimant to tick a box to indicate his or her intention in this regard.

Rule 11(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, provides that the ET 'shall reject a claim if it is not accompanied by a Tribunal fee or a remission application'. Whilst the fee can be paid at the time the online application is made, original documentation is required in support of a fee remission application.

In Deangate Limited v Hatley and Others, the claimants submitted their ET1 claim forms online the day before the time limit for submitting their claims expired. They had ticked the box to indicate that they were seeking fee remission and sent their fee remission applications by special delivery five days later. The ET office had advised them that their application would be treated as having been submitted with the claim form provided the supporting documents arrived at the ET within seven days, which appears to be the general policy.

The employer argued that the ET should have rejected the claims because, on a literal interpretation of the word, the applications for remission had not 'accompanied' the claims and any repeat application would have been out of time.

The ET rejected the employer's arguments, as did the Employment Appeal Tribunal (EAT) on appeal, although for different reasons. Because the EAT's decision could have important repercussions, representation was heard from the Secretary of State for Justice to the effect that, in the context of the legislation, Rule 11 should be construed such that ticking 'yes' on the claim form where it asks if the claimant intends to apply for fee remission should be treated as actually making an application. The supporting information then provides the necessary detail in support of that application.

The EAT accepted this interpretation and dismissed the employer's appeal.

A necessary effect of this interpretation of Rule 11 is that, whilst a claimant intending to apply for fee remission who submits their ET claim by post or by hand is likely to find it more convenient to provide all the necessary information at the same time, the ET would have no right to reject a claim submitted without the information required.

For advice on this matter, contact Chris Brazier or a member of the employment practice at B P Collins. Call 01753 279029 or email employmentlaw@bpcollins.co.uk.

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