We blogged last month about the legal changes that were expected,
but now they have arrived. The 29th July has brought change –
fundamental change. It has also brought with it... mayhem!
Last Monday, for the first time ever, Claimants
now have to pay a fee to lodge their claim. A Claimant will pay £160 for a
“type A” claim and £250 for a “type B” claim. Hearing fees for those claims are
£230 and £950 respectively. Type A claims are meant to be the easier ones, type
B the more difficult sort. But which claims are which? Good question – as of
this past Monday, we didn’t have a final copy of the Fees Order – it was only in
draft form. The final draft didn’t arrive until one day after implementation!
We also had an email from the Ministry of Justice who wrote
to us to clarify that, astonishingly, Equal Pay claims, which can be some of
the most complex litigation in employment law, are still type A claims – the
simpler ones! However, ministers are expected to announce a change to that
position shortly. So if anyone has a claim for equal pay they would be wise to
issue it now whilst it’s at the cheaper rate. This could add to the surge of
claims already issued before Monday by Claimants trying to avoid paying a fee
altogether (although that could not be done on-line because the system was
down). We hear that over 500 claims
were lodged in the Leeds Employment Tribunal alone on Friday! I think we can
expect to wait many weeks for any of the Tribunals to acknowledge our claims.
Claimants – expect delays.
Equal pay claims aren’t the only anomaly. A claim for a
Protective Award for failing to consult about redundancies is a type B claim,
yet the same claim for failure to consult under TUPE (when employees transfer
to another employer) is a type A claim! In addition, the guidance suggests that
TUPE failure to consult claims and working time claims fall within Band B
whereas the fee Order clearly still lists them within Band A. Let’s hope for
some clarity on the fee types as soon as possible.
And then we have brand new Claim Forms. We also have a brand
new remission scheme, so that people can apply to pay no fee at all or only
part of the fee. After road-testing these forms, whilst they look at first ok, we
see there are real problems. First of all, it’s not easy for a Claimant to find
their form on the Tribunal’s website. You then only have 20 minutes on each
page when completing online, otherwise you lose your data. The fee type seems
to (wrongly) set itself after only a few questions. It has crashed several
times during our tests. There is no way of attaching documents such as additional
particulars of claim and there is no way of saving the completed form – you have
to print it for your records!
The PDf version of the form is no better. It can’t be saved
without a ‘signature’ and once it’s signed it doesn’t seem to let us change it!
It doesn’t seem as though we’ll be able to email a copy to our clients for
approval and if any changes are required, the full form will need to be retyped.
It is going to take some getting used to.
And this is in today’s age of technology!
A further issue that doesn’t seem to have been thought
through is the problem of how to pay a fee. The Tribunal system would prefer
for us to lodge claims on-line and pay the fee at the same time by debit or
credit card. Claimants themselves might
be able to do this but what about law firms paying the fees on behalf of their
clients, where the client has a source of funding e.g. a union? There was talk
of a Paypal account but no sign of it. If we are to pay a fee on behalf of a
client, we will need to send a cheque and rely on the postal system or
hand-deliver it with the claim form! If your office is near to one of the
allocated hearing centres, hand-delivery seems to be the best option and it
guarantees the claim form and fee is received. However, when you act for
clients nationally, a trip to Cardiff, London or Glasgow on the day limitation
expires is going to be messy!
And aside from fees and new claim forms we have new rules of
procedure, a new cap on unfair dismissal compensation, pre-termination
negotiations in unfair dismissal cases are inadmissible and compromise
agreements are now ‘settlement agreements’ with a new ACAS code of practice.
What a landscape the government is creating! And what an
interesting way of doing it...
Daniel Kindell - Solicitor
