Employment law advice

Raising an Employment Claim

Guide for Claimants

This is a short guide for individuals raising a claim under the new rules of procedure that apply when submitting a claim to the Employment Tribunal. The new rules came into force on the 29 July 2013 and will apply to all new claims without exception. This guide will outline how we can help you raise a claim if you have an employment related issue.

Why have the rules changed? 

The Government has modernised the rules relating to Employment Tribunal procedure to ensure that the system is effective as possible, ensuring all claims are considered properly.

To that end, the old rules have been simplified and shortened to make the whole process from start to finish much more accessible for all. Despite the changes, the overriding principle of the tribunal remains to deal with all cases justly and fairly. In essence the rules aim to achieve two outcomes: 

  1. flexibility in proceedings; and
  2. avoidance of unnecessary formality and delay. 

Examples of the types of claims that we can help you with include: 

  • Unfair Dismissal (including constructive dismissal);
  • Equal Pay;
  • Breach of Contract;
  • Discrimination (based on grounds of  disability, age, sex, pregnancy/maternity, race, sexual orientation, religion/beliefs);
  • Dismissal or negative treatment as a result of Whistle-blowing; and
  • Unlawful deduction of wages.

Starting your claim - When to act?

As soon as you think one of the incidents, acts or complaints above has occurred you have three months less a day to raise a claim. For example, if you were unfairly dismissed on the 24 May 2013, the claim must be submitted on or before 23 August 2013. 

It is best practice therefore to try and resolve things with your employer and seek independent legal advice as soon as possible. The earlier you raise a claim then the more time there is to prepare your case forms and pay the applicable tribunal fees that apply. A claim is started by presenting a completed form, known as an ET1 form, to the employment tribunal with the appropriate fee, discussed below. 

Please note that the time limits imposed by the employment tribunal rules are strict and there is no guarantee an extension will even be considered. Once a claim has missed the window it is usually the end of the road for that particular claim in the Employment Tribunal. 

Payment of Fees 

The new requirement to pay tribunal fees is the most significant change to employment law in a number of years. 

All new claims will be subject to these fees irrespective of how simple or complex the claim actually is. From the outset of your claim we will provide full information and guidance on all applicable fees that apply to your claim. 

There are only two fee categories for employment claims. Your claim will either be a ‘Type A’ or ‘Type B’ claim. 

‘Type A’ claims involve cases such as breach of contract and deduction of wages. ‘Type B’ claims are deemed to be more complex and require more time to resolve, and involve cases such as unfair dismissal and discrimination, and, as a result, are more expensive in terms of tribunal fees. 

Once the type of claim is determined there are two fees to be aware of during the initial stage. The first is called the issue fee, which must be submitted along with your claim form before the three month less a day period expires. The ET1 form is prepared and submitted on your behalf by the firm. 

The second fee to note at this stage is known as the hearing fee. The hearing fee, however, is not payable until further on in the process and will be discussed below. 

Cost of the Issue Fee 

The most important fee for any new claimant to consider is the issue fee, which, as stated above, must accompany the ET1 form when it is submitted to the employment tribunal. The cost of the issue fee is as follows: 

  • For ‘Type A’ claims the issue fee is currently set at £160.00
  • For ‘Type B’ claims the issue fee is currently set at £250.00

How do I pay?

As your representative the firm will pay the issue fee from our bank account when we submit the claim. We can only do this when we have clear funds in place, but we will give you the relevant details once instructed. 

What happens once my Claim is submitted? 

Once the ET1 form is submitted (along with the issue fee) and is accepted by the tribunal, we must wait for a response from the other side (your employer), known as the Respondent. The employment tribunal will forward the ET1 form to Respondent, and from this date they have 28 days to respond, which is done by the submission to the tribunal of an ET3 form, which states the Respondent’s defence(s) to the claim(s) raised. If they do not respond within this time limit, which is usually unlikely, an employment judge has discretion to issue a default judgement based on the information he has at such time. It is likely, however, an ET3 form will be submitted on time. 

Sifting Stage

Once the tribunal is in possession of both the ET1 and ET3 forms, an employment Judge will look at both forms and will consider whether they are arguable complaints and defences. The Judge can dismiss all or part of the claim or response if of the view that it has no reasonable prospect of success. 

This is a sifting stage whereby weak cases are identified and do not proceed to a full hearing. This stage occurs soon after the ET3 is received by the tribunal, but there is no fixed time limit. Once the sift stage is complete and both the complaints and defences have been accepted, the employment judge will arrange any future hearings or case management orders as are deemed appropriate based on the circumstances of the case. Once the forms are submitted we will provide you with relevant updates throughout the process. 

At this stage it is likely that the Hearing fee, mentioned above, will be requested by the tribunal. This fee is only payable once the tribunal issues a ‘Notice to Pay’.

The ‘Notice to Pay’ will specify the amount and date the hearing fee (or any other applicable fee) is due to the tribunal for the action to proceed. As your representative, the ‘Note to Pay’ be sent from the tribunal to the firm in the first instance, so we will advise you on what needs to be paid at the relevant time.

Cost of the Hearing Fee 

The cost of the hearing fee is as follows: 

  • For ‘Type A’ claims the hearing fee is currently set at £230.00
  • For ‘Type B’ claims the hearing fee is currently set at £950.00 

Missed Payments

If you do not pay your hearing fee the tribunal will send you a further notice telling you the date by which you must pay the fee. If you do not comply with this, your hearing will not proceed and your claim could ultimately be struck out. As your representative the firm will advise of all payments due in advance of any deadline.

Are the Fees Reimbursed if I Win/Settle? 

If your claim is successful at the tribunal, you can ask the employment Judge to order the Respondent to reimburse your fees. It is up to the tribunal to decide if such an order is made. 

If you reach a compromise and settle with the other side during the process once fees have been paid, then the tribunal will not reimburse your issue fee and hearing fee (or any other applicable fee you have paid). Therefore, fees paid should be discussed and covered as part of the settlement agreement with the Respondent. Also, please note if your claim is struck out after the issue fee is paid, it will not be reimbursed. 

If you are unsuccessful in your claim, you may be ordered to pay the costs and any fee’s incurred by the Respondent. 

Rejection & Reconsideration of your Claim 

  • A claim may be rejected for a number of reasons, namely: 
  • Not submitted on the prescribed form;
  • Employment tribunal does not have jurisdiction;
  • ET1 form does not include the correct Employer’s name and address
  • Form is not accompanied by the correct fee
  • If you send the wrong fee a notice will be issued stating how much is owed and by when

If the tribunal rejects your claim, you can apply for reconsideration of your claim within 14 days of the rejection notice being sent. This application must provide the reason why the rejection decision was wrong or rectify any defect in your claim. If the claim is reinstated, the date of reinstatement is then considered the date lodged, and the relevant time limits apply (rather than from the date the claim was originally submitted). 

Eligibility for Remission of Fees

 Remission (waiver) of fees may apply to your case. This means that eligible Claimant’s can be exempt from all or part of a tribunal fee. You can apply for any tribunal fee to be remitted and each fee requires separate application for such. For example, just because you receive remission for one fee doesn’t automatically mean you will receive remission for another.

There are three types of remission: 

  1. Full Remission based on passported benefits 

If you receive one of the following benefits when the fee is payable you should receive full remission: Income Support, Income-based Job Seekers Allowance, State-Pension Guarantee Credit, Working Tax Credit, Income-related Employment Support Allowance, and Universal Credit. 

  1. Full Remission based on Gross Annual Income 

Under this heading Remission is based on an assessment of you ‘household income’ for the 12 months preceding the remission application. This includes the income of your partner living with you regardless of their knowledge of proceedings and whether or not you are married. The assessment also takes account of any dependent children living with you. 

For example, if you are applying individually without dependent children, your annual gross income must not exceed £13,000. Annual gross income must not exceed £18,000 if you are a couple, and the threshold increases with each dependent child. 

  1. Full/Partial Remission based on net Monthly Disposable Income

If you are not eligible for the first two types of Remission, you may be eligible for full/part remission based on your household monthly disposable income. This is assessed by looking at what money you have coming into the household every month after tax, and deducting from the expenses such as housing costs and fixed allowances for general living and dependent children. 

If you are not a couple, you will receive full remission if monthly disposable net income is below £50. If it is above £50 then you may be able to obtain partial remission. 

If your disposable monthly net income is more than £50 per month but does not exceed £210, an amount equal to 25% of every £10 of your income up to £50 is payable. 

If your disposable monthly net income exceeds £210, an amount equal to £50 plus 50% of every £10 over £200 of your disposable income is payable. There is no cap on income.

For further help / advice on making a claim contact, Robert Holland