Presenting in time and the frustrations of fee remission

With the recent introduction of fees and the possibility of exemptions, questions have been raised as to whether the time limit for issuing an employment claim is met simply by the filing of the application together with the appropriate request for remission. The practice of tribunals in acknowledging the ET1 is to place the application on hold until the issue of the fee has been established (ie exemption or requirement to pay). This itself is subject to a number of appeals, which can take many weeks. In a recent claim pursued by my firm, the respondent’s
solicitors challenged whether the claim was presented in time as no case number was allocated and, of course, the respondent is not served with documentation until the formalities are complete. The question therefore is whether the filing of the application and any form of exemption is itself ‘presentation’ within the meaning of the tribunal rules, or is it only when the application is perfected, given a number and served, that the presentation is valid?

Tribunal Service’s approach

Although no judicial decision has yet been registered, ELA Briefing readers may be interested to know of an exchange of correspondence with Her Majesty’s Courts and Tribunals Service. Kevin Sadler, the Director of the Civil and Family
Tribunals Section of the Department, has confirmed to me the Tribunal Service’s approach (with the caveat that the ultimate determination about when a claim is presented is for the judiciary and individual cases). Sadler wrote: ’A claim is considered to have been presented to the tribunal when it is lodged in compliance with the employment tribunal rules of procedure – specifically rules 10 and 11 (and the associated practice directions made under rule 8). The rules require that a prescribed form is used, that certain required information is given and that a valid fee or a remission application has been submitted. If a claim is so
submitted, it is taken to have been presented in accordance with the rules (subject to a later judicial decision to the contrary). Any work to assess remission applications will take place afterwards, ie once the “hurdle” of presentation has
been passed.’ The letter goes on to say that there is a technical distinction
between a presented claim and an accepted claim under the legislative framework. A claim is ’accepted‘ once the fee has been paid or the remission application is determined. A remission refusal carries the right of appeal and, if the appeal process is ultimately unsuccessful, there is still a final opportunity to pay: ‘Importantly if and when the fee is taken or the remission application is successful (whether after an appeal process or otherwise), the claim would be accepted from the original date of its presentation.’

Fee remission delays

While this is helpful, it is of course not the only problem encountered by ELA members. Readers will be aware of the discussion on ELA’s LinkedIn page about fee remission. It appears that remission applications were taking around
seven weeks over Christmas. Members have also reported that remission applications have been rejected on the basis of inadequate financial evidence, despite claimants complying with the guidance on the evidence required. The apparent impossibility of finding anyone to speak to on the telephone
to address these issues is clearly a source of much frustration. It is to be hoped that these too will be resolved once the system beds down.