A Box Ticking Exercise

tick-box Rule 11(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 requires that “The Tribunal shall reject a claim if it is not accompanied by a Tribunal fee or a remission application.”

In other words, since the since the introduction of employment tribunal fees if a claim is made but that claim is not accompanied by either the relevant fee or an application to HMCTS for a remission of that fee the claim will be rejected meaning the claim will not be heard.

Applications for a fee remission are normally completed on form EX160. Unfortunately, it is not open to an applicant to complete a form online; this means a claimant can submit a claim online but if they wish to make an application for remission they should tick the box stating this and send the EX160 from by post within seven days.

It is a needlessly complicated system, and one employer has recently tried to manipulate to argue a claim should be rejected. In Deangate Ltd v Hatley & Ors [2015] UKEAT 0389_14_2603 three claimants submitted an online ET1 one day before the limitation period for lodging the claim expired. However, the claimants did not pay the fee but stated that they would be making a fee remission application (which they did). However the EX160 was received by the Tribunal after the limitation period. The question, therefore, is whether the ET1 was, on the date of submission online, “accompanied by a  … remission application”.

As Langstaff P noted, ” If “ticking the yes box” did not amount to making an application this would have the unhappy consequence that in practice forms could be submitted online only by those with the funds to pay fees, and would disadvantage those who had internet access but no resources: but this, again, is not a necessary feature of the online submission of claims.”

In conclusion is was found that

Since it is not in dispute that each Claimant ticked the appropriate box, and my conclusion that to do so amounted to an application is one wholly of law, there is no other conclusion she could have reached.  Despite the considerable thought that Mr Pearson has put into his submissions, the appeal fails. It does so because I accept the Intervener’s argument that what happened in the case of each of the Claimants was that an application for remission of fees did actually accompany the claim, being made in the same online submission as the claim even if it was only fleshed out when Form EX160 was later sent in.

The decision is a welcome one but one, I am sure, that was taken with a good helping of pragmatism as it would have required HMCTS to completely rework its system. It is notable that the Secretary of State for the Ministry of Justice was invited to intervene in the case and it was the intervening Counsel’s arguments that was to prove decisive in the judgement.

For my part I cannot see how, given the tick box states whether the applicant ‘intends’ to make an application and the form by which this is done (the EX160) is not part of the application how ticking a box amounts to ‘an application’. That is not a problem with the legislation but with the pretty shambolic implementation of the remission process by HMCTS. Still, HMCTS will be thankful the President of the EAT has saved them some blushes (and,importantly, allowed claimants the opportunity to present their case).

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