If you appeal to the EAT or take a claim to the employment tribunal at present, it is entirely funded by the taxpayer. Under section 42 of the Tribunals, Courts and Enforcement Act 2007, the government can introduce fees to particular tribunals if they fell it is necessary. These could include employment tribunals and the EAT, however the government has now decided to start introducing fees into these tribunals.

The Government has proposed two different schemes for charging fees: Option 1 and Option 2. Option 1 outlines an initial fee for a claim to be put forward and then a second fee for a hearing. If the government do decide on either schemes, Option 1 would be implemented in 2013 ad Option 2, as it requires a primary legislation to be implemented in full, would be introduced in 2014. Below outlines the main points of each proposal.

Option 1:

• Fees will be initially set to recover a proportion of the cost of providing the service.

• For single claims, the level of fees should vary depending on the nature of the claim made and the stage reached in the proceedings.

• For multiple claims, the level of fees should vary depending on the nature of the claim made, the stage reached in the proceedings and the number of people in the claim.

• There should be two main charging points for fees – first on issue and then, for those claims proceeding to hearing, before the hearing.

• Fees will initially be payable at the time of lodging the claim by the party who makes the claim to an employment tribunal or instigates an appeal to the EAT.

• The party that lodges a claim or an appeal should initially pay the hearing fee in advance of the claim or appeal being heard.

• The indicative fee levels for single claims to employment tribunals are proposed at the following rates:

1. Issue fee (payable by claimant): Level 1 – £150, Level 2 – £200 and Level 3 – £250

2. Hearing fee (payable by claimant): Level 1 – £250, Level 2 – £1,000 and Level 3 – £1,250.

• There are six further fees for certain specified applications that may be made and these are proposed at the following rates:

1. Request for written reasons (payable by party who applies): Level 1 – £100, Level 2 – £250 and Level 3 – £250

2. Review application (payable by party who applies): Level 1 – £100, Level 2 – £350 and Level 3 – £350

3. Dismissal of case after settlement or withdrawal (payable by respondent): £60

4. Set aside default judgment (payable by respondent): £100

5. Counter-claim (payable by respondent): £150

6. Mediation by judiciary (payable by respondent) – £750.

• The HM Courts & Tribunals Service remission system will be available for those who cannot afford to pay the fee (currently, full remission of fees is available to those on certain state benefits, including income support and jobseeker’s allowance, and those on low annual incomes, and partial remission is available to those on low monthly disposable incomes).

• Tribunals have power to direct that the unsuccessful party reimburse the fees paid by the successful party so that the cost is ultimately borne by the party who caused the system to be used.

• The indicative fee levels for the EAT are proposed at the following rates:

1. Issue fee (payable by appellant): £400

2. Hearing fee (payable by appellant): £1,250.

Option 2:

• There should be one main charging point for fees only, at issue of claim stage, and in employment tribunals six further fees for certain specified applications that may be made after a claim has been accepted.

• The level of fees should vary depending on the nature of the claim made and the value of the claim, and for multiple claims, the number of people in the claim.

• If the claimant chooses to seek an award over the threshold of £30,000 a higher fee is payable (Level 4) irrespective of the nature of the claim.

• Where a claimant seeks an award lower than the threshold of £30,000, the tribunal is prohibited from making an award above the threshold if the claim is successful.

• The fee for high value claims (Level 4) will be initially set to recover the full cost of providing the service with other fees (Levels 1, 2 and 3) set below full cost recovery.

• The indicative fee levels for single claims are proposed at:

1. Level 1 claims (up to an award of £29,999) (payable by claimant): £200

2. Level 2 claims (up to an award of £29,999) (payable by claimant): £500

3. Level 3 claims (up to an award of £29,999) (payable by claimant): £600

4. Level 4 claims (where the award sought is over £30,000 or unlimited) (payable by claimant): £1,750.

• Fees will initially be payable at the time of lodging the claim by the party who makes the claim to an employment tribunal or instigates an appeal to the EAT.

• The HM Courts & Tribunals Service remission system will be available for those who cannot afford to pay the fee.

• Tribunals have power to direct that the unsuccessful party reimburse the fees paid by the successful party so that the cost is ultimately borne by the party who caused the system to be used.

As the claims include different terms for different levels, the government has outlined that:

• Level 1 includes breach of contract, a failure to provide a written statement of particulars of employment, a failure to pay a redundancy payment and unauthorised deductions from wages claims

• Level 2 includes unfair dismissal, various detriment claims and fixed-term employees and part-time workers claims

• Level 3 includes discrimination, harassment and victimisation, equal pay and whistleblowing claims

• Claims involving more than one type of complaint would attract the fee payable for the highest claim.

Even though employers may welcome these proposed fees, they need to remember that claimants may now aim for higher settlements due to increased costs that they have to pay.  It has also been picked up that if the majority of claimants are eligible for a fee remission or waiver, then the government’s scheme will be useful to many people. The consultation is open until 6th March 2012.