REPS GUIDE TO PROCESSING EMPLOYMENT TRIBUNAL CLAIMS

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Dear Colleagues

THE BRANCH OFFICERS/REPS GUIDE TO PROCESSING EMPLOYMENT TRIBUNAL CLAIMS

This briefing is to assist Branches in advising and assisting members who are considering taking unfair dismissal/discrimination complaints to an Employment Tribunal. It replaces our previous guidance in LTB 447/2009.

Contained within the Guidance is a list of the major changes made to the Employment Tribunal system by the current Coalition Government.

Accessing the tribunal system has never been more difficult. Not only have the Government introduced changes to the system which are a direct attack on employment rights, they are now introducing a fee structure which claimants must pay which will seriously restrict an individual’s ability to access the Tribunal system.

Members’ Entitlements

Members are entitled to the benefits and services of the Legal Department as governed by National Rule 4.1.7. “Members of the Union are entitled to receive appropriate benefits and as negotiated by the Union either nationally or locally and appropriate legal services at the discretion of the NEC in accordance with published procedures”. Members should be made aware that the Union is not obliged to support any case unless we consider that it has reasonable prospects of success, i.e. 50% or more. This criterion was agreed by the Union at National Conference.

Employees have the right to take a complaint of unfair dismissal or unlawful discrimination and other disputes to a Tribunal provided they meet the qualifying legal conditions. Members should always be made aware that an Employment Tribunal hearing is not a re run of an employer’s internal discipline procedure and no matter how much an individual may feel an injustice has occurred any application to the Employment Tribunal must be based on facts and not simply a desire to have a day in Court. The CWU has an obligation to assist it’s members. However, representation will only be authorised if a case has the required merits.

Branch and Reps Handling

As Branch Secretaries, you are responsible for processing requests for assistance from members of your Branch. The Employment Tribunal can also be accessed independently by members and their advisers. Our advice is that all Branches should have at least one Officer dedicated to these issues and a procedure to facilitate efficient and timely processing of all these ET applications to the Legal Department. We will be happy to discuss the practicalities of this advice with Branches, recognising the various internal structures and geographical spread.

Authorisation of Legal Representation

In order for representation to be considered, the Legal Services Department will require our members’ ET1 application, the Employer’s ET3 response and all relevant internal discipline/grievance and appeal minutes, in order that an initial assessment can be made as to the merits of the claim. Assessments will be carried out either by CWU’s in house ET Panel, or where necessary, CWU’s authorised Solicitors. Branches should resist from advising members as to the likely outcome of such assessments as this may lead to unrealistic expectations.

List of Changes introduced by Coalition Government

• Unfair dismissal qualifying period. Qualifying period for the right to claim unfair dismissal changed from one to two years for new starter employees on or after the 6th April 2012
• Changes to Tribunal Procedure. Unfair dismissal cases heard by Judges sitting alone.
• Deposit Orders. The amount a Tribunal can now order a claimant to deposit if he or she wishes to proceed with a case which the Judge considers has no reasonable prospects of success has increased from £500 to £1000
• Witness statements will now be taken as read, i.e. the witness will not be asked to read their statement aloud in Tribunal unless the Judge directs otherwise
• Costs. The Tribunal can now order a party to pay up to £20,000 (an increase from £10,000) for example, where a party has applied for a postponement of the hearing or has behaved vexatiously, disruptively or abusively. The paying party can also be required to pay the expenses of their own witnesses incurred in attending the Tribunal (where formal expenses could be reclaimed from the Employment Tribunal Service).

Changes to Tribunal Procedure Rules

• The Enterprise and Regulatory Reform Bill makes changes to Employment Tribunal procedures that will affect claims presented on or after the 6th April 2013. The main changes are listed below:
• Introduction of new ET1 and ET3 forms
• Claims may be rejected by a Judge if they decide that a). the claim is outside of the Tribunal’s jurisdiction or b). the claim has no prospects of success (subject to considering written representation by the claimant). The claim may also be rejected by the Judge if they decide that the Employers’ response has no reasonable prospects of success (subject to considering written representation from the respondent)
• Default judgments may not be issued if the ET3 response attaches an extension of time
• All correspondence sent to the Tribunal must be copied to the other party
• Case management discussions and pre-hearing reviews will be replaced by a single preliminary hearing. A preliminary hearing may be converted into a final hearing by a Judge at any time, including the hearing itself
• Tribunals may impose and enforce time limits on parties presenting their evidence in the Tribunal, for example, limiting the amount of time to cross examine a witness
• There will be a new duty on tribunals to encourage and facilitate alternative dispute resolution
• Employment Judges will have the power to carry out detailed assessments of costs over £20,000 following the civil procedure rules.

Employment Tribunal Fees

The Government will introduce fees for bringing claims for Employment Tribunals and Employment Appeal Tribunals. Fees will be implemented on 29th July 2013 subject to Parliamentary approval.

The claimants will be responsible for the payment of an issue fee which has to be paid at the same time as submitting ET1 tribunal application form. If the claim subsequently proceeds to a hearing the claimant has to pay an additional hearing fee, which is payable at the time when notice is given by the Tribunal Office regarding the date when the hearing will take place.

The fee you have to pay depends on the type of claim you are making, which falls into two main categories.

Level 1

These include claims about :
• unpaid wages
• payment in lieu of notice
• redundancy payments; and
• holiday pay

Level 2

These claims involve :
• unfair dismissal
• equal pay claims
• discrimination complaints
• claims under the Public Information Disclosure Act (sometimes referred to as whistleblowing)

Fee Type Level 1 Level 2

Issue Fee £160 £ 250
Hearing Fee £230 £ 950
Total £390 £1200

Fee Remission

It is recognised that there may be certain claimants that cannot afford to pay all or part of the fees. Consequently, there will be a system in place where claimants may be entitled to a full remission (i.e. no fee will be payable) or part remission (i.e. only a contribution towards the fee will be payable) depending on their income.

Remission Type 1

No fee is payable by the claimant where they receive one of the following benefits :

• Income support
• Income-based jobseeker’s allowance
• Pension credit guarantee credit
• Income related employment and support allowance
• Working tax credit but not also receiving child tax credit
• Universal credit
• Scottish Civil Legal Aid

Remission Type 2

No fee is payable by the claimant if their gross annual income and that of their partner (if they are a couple) is not more than the amounts shown in the table below:

Gross Annual Income with Single Couple
No children £13,000 £18,000
1 child £15,930 £20,930
2 children £18,860 £23,860

Where the claimant has two or more children, the amount of gross annual income for the purpose of this remission is the amount stated in the table above for two children plus a further £2,930 for each additional child.

Remission Type 3

This remission will provide either a full remission (as in Remission 1 and 2 above) or a part remission based on an income and expenditure means test to calculate the claimant’s (and, if applicable, their partner’s) monthly disposable income.

As part of the income and expenditure means test, there are three fixed allowances that the claimant may take into account (where applicable) when calculating disposable income.

Further information regarding Remission Type 3 can be found on http://www.justice.gov.uk/tribunals/employment" onclick="window.open(this.href);return false;


Payment of Fees

The CWU has recognised that the introduction of the fee structure will seriously restrict our members’ ability to access the tribunal system. In considering the level of assistance the CWU can provide to its members, the NEC has agreed to fund payment of the issue fee on behalf of our members who submit an ET1 application. Additionally, if the case is assessed as having the required prospects of success and subsequently authorisation is given by the Legal Department to run the case on behalf of the member, if this case progresses to a full tribunal hearing, the NEC has also agreed to pay the hearing fee, as appropriate.

Branches should note the NEC has approved the funding of the tribunal fees on the basis that it will monitor both the administrative workings of the tribunal system and the financial costs to the CWU within the 2013 financial budget. It will then be the intention of the NEC to review its position going forward into 2014.

Making an Application

It still remains the members’ responsibility to submit their ET1 application to the Tribunal office and branches may assist members with this process. Branches should not submit the application on the members’ behalf. Members will have the choice of the following two options:

Option 1 - Members can submit their ET1 application form direct to the Tribunal Office and make the payment themselves and once they have received an acknowledgement that the claim has been lodged with the Tribunal office they should send copies of their application to the Legal Services Department and a refund of the issue fee will be made by the Legal Services Department.

Option 2 - Members who feel they are not in a position to pay the issue fee must complete Application for a Fee Remission form and present this to the Tribunal Office with their ET1 application form. Applications for remission will be assessed by the Tribunal Office and a decision will be made as to whether the application is successful, or part, or all of the fee become payable by the claimant. In the event, part or whole payment is due to be paid; our member must make the payment and subsequently provide documentary evidence to the Legal Services Department who will then refund the fees paid.

Branches should note and explain to members, once the ET application has been lodged with the appropriate Tribunal office, the normal process for assessment will be made by the Department as to the merits of our members’ claims and further representation will be provided, as appropriate. The payment of the fees does not indicate the CWU is providing representation on behalf of the member. This decision will be made once the application has been assessed.

Members choosing option 1 above, must pay the issue fee when they submit their claim to the Tribunal office, either on line or by post. If they are submitting their claim on line, they can pay by debit card or credit card and this is the quickest and easiest way to make a payment. If they send their claim by post, they can pay by cheque or postal order, made payable to HM Courts & Tribunal Services. Payments are collected through centralised processing centres and if they are making a claim in England and Wales then they can post their claim, with a cheque or postal order, to the following address : Employment Tribunals Central Office, Post Office Box 10218, Leicester, LE1 8EG.

If you are making a claim in Scotland, please send your claim form and payment to: Employment Tribunals Central Office, PO Box 27105, Glasgow, G2 9JR.

No fee or remission application

A claim will be rejected by the tribunal with a notice of rejection explaining why if it is not ‘accompanied by a Tribunal fee or remission application”.

Time Limits

It is vitally important that members are made aware of the time limits for submitting their ET1 applications, which is usually 3 months. For unfair dismissal claims the 3 months time limit begins from the effective date of termination of employment. Members should not wait for any internal appeals procedure to be completed and should submit the ET1 within 3 months, less 1 day of the date of the effective date of termination of employment.

Cases relating to Discrimination

The 3 months time limit begins from the date of the last “act” complained of. Again, the ET1 application should be submitted within 3 months, less 1 day.






Multiple Claimants

In addition to the single claimant fee structure, separate fees are payable for both level 1 and level 2 claims which involve multiple claimants. Further details regarding multiple claimants fee structure is available on http://www.justice.gov.uk/tribunals/employment" onclick="window.open(this.href);return false;

Application Specific Fees

In addition to issue and hearing fees there are also separate fees payable where certain applications are made to the Tribunal. These fees will be paid by the CWU in circumstances where authorisation has been given to represent the member.

Employment Appeal Tribunal Fees

Claimants and respondents who are unhappy with the decision made by the Tribunal can make an Appeal to the Employment Appeal Tribunal. Fees have also been introduced to access the EAT and these are payable by the party lodging the appeal.

• The Appeal Fee £400
• Hearing Fee £1200

Details contained within this LTB are for information purposes only and members should be made aware that it is not given as qualified legal advice. Such legal advice can only be provided by a solicitor.

Please note that some of the new tribunal procedures may change subject to further Government legislation. Further information will be published accordingly.

If you have any further enquiries regarding the above then please contact Mr Tony Rupa, Head of Legal Services, Communication Workers Union, 150 The Broadway, London, SW19 1RX. Telephone 0208 971 7444 or via email trupa@cwu.org


Tony Rupa
HEAD OF LEGAL SERVICES

Useful sources of information :

http://www.justice.gov.uk/tribunals/employment" onclick="window.open(this.href);return false;
http://www.justice.gov/courts/fees" onclick="window.open(this.href);return false;
http://www.acas.org.uk" onclick="window.open(this.href);return false;
http://www.equalityhumanrights.com" onclick="window.open(this.href);return false;

[fishtank]

A. Advice on members’ ET rights
B. Check list
C. Branch Consultation Record
D. Standard Letter – Unfair Dismissals
E. Standard Letter – Unlawful Harassment/Discrimination
F. Required documentation list
G. Notices

ET Guidance.doc

[teesdale]

The CWU will not be representing anyone who gets sacked at stage 3 of the attendance procedure. No unfair dismissals even for hospital admission. I bet Moya Greene even has meetings entitled natural wastage where they plan to remove a certain target of full timers each year. How can a system exist where you can have eight days off in two years and this gets you the sack.