ET Fees for claimants and fines for employers – start dates and false starts

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The Government has published the date from when employees will have to start paying fees for using the tribunal system.

Contrary to information circulating earlier today, there is no fixed date for when employers who lose claims will face fines.

Background

Tribunal fees and fines are both measures included within the Enterprise and Regulatory Reform Act 2013 (“the Act”) which was passed by Parliament on 25 April 2013. Measures under the Act are being brought into force at different times, and not necessarily in line with the common commencement dates in April and October.

Fees

Fees for using the tribunal system will apply to any claim lodged on or after 29 July 2013. From this date, employees who bring a claim in the tribunal will be required to pay a fee upon issuing the claim and then shortly before the final hearing.

Details of the fees system can be found in our earlier briefing

Fines

The Act allows tribunals to impose a fine on employers who lose a tribunal claim, in situations where there are “aggravating features”.

You may have heard from other sources that this measure is coming into force in October this year. However, there has been no such announcement. There is no fixed date for the implementation of this measure, although BIS recently indicated that it was likely to be Spring next year.

The fine will be 50% of the compensation awarded to the employee, subject to a minimum of £100 and a maximum of £5,000. The employer can pay half the amount if it pays within 21 days. There is no statutory guidance on what an aggravating feature is but the explanatory notes to the Act say that:

“It is for the employment tribunal to decide, taking into account any factors which it considers relevant, including the circumstances of the case and the employer’s particular circumstances.

The employment tribunal should only take into account information of which it has become aware during its consideration of the claim.

A non-exhaustive list of factors which an employment tribunal may consider in deciding whether to impose a financial penalty under this section could include the size of the employer; the duration of the breach of the employment right; or the behaviour of the employer and of the employee.

An employment tribunal may be more likely to find that the employer’s behaviour in breaching the law had aggravating features where the action was deliberate or committed with malice, the employer was an organisation with a dedicated human resources team, or where the employer had repeatedly breached the employment right concerned.

The employment tribunal may be less likely to find that the employer’s behaviour in breaching the law had aggravating features where an employer has been in operation for only a short period of time, is a micro business, has only a limited human resources function, or the breach was a genuine mistake.”

For details on the other measures in the Enterprise and Regulatory Reform Act and the dates when those measures come into force, see our earlier HR Briefing Employment changes finalised in Enterprise and Regulatory Reform Act and Growth and Infrastructure Act.

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