Scottish Employment Rights Network and Equality and Human Rights Commission Conference 2013:

1. Scottish Employment Rights Network and Equality and Human Rights Commission Conference 2013: Update on employment and equality rights. 10:15 Welcome and introduction Morag McLaughlin, Scotland committee member Equality and Human Rights Commission 10:20 The practical implications of the new Employment Tribunal Rules of Procedure and Fee Charging Shona Simon, President of Employment Tribunals (Scotland) 11:05 Refreshment break 11:25 Making the new Employment Tribunal regime work; a claimant’s perspective Peter O’Donnell, Thompsons Solicitors and Chair of the Scottish Employment Rights Network 12:05 Equality Law Case Update Claudia Bennett, Senior Solicitor Equality and Human Rights Commission   12:45 Discussion and networking lunch

2. SERN and EHRC Conference The New ET Rules and ET Fees

3. Underlying philosophy on rules • Use clear language as simply as possible • Keep what is best of the old rules • Try to make the rules a self contained procedural code with minimal need to refer to other legislative sources

4. Now found in the rules…. • The overriding objective (R2) – new responsibilities clearly imposed on representatives as well as tribunals and parties. • Interpretation of terms (R1) including words such as “claimant” and “respondent”.

5. Presidential Guidance • Rule 7 – matters of practice and how the powers conferred by the rules are to be exercised. • It is guidance rather than being binding. • Can you help me to assist tribunal users by suggesting areas in which guidance might be issued?

6. Simplification of process re late lodging of response • Now able to apply to lodge response late even after expiry of 28 day period • No longer necessary for tribunal to reject late response (even if good reason for lateness), issue DJ and then on application reconsider DJ (review) and as part of reconsideration process then consider late response

7. “Sift” processes • EJ has power under r. 12(1)(b) to reject a claim (or part) if it is in “a form which cannot sensibly be responded to or is otherwise an abuse of process”. • Under r.26 EJ is to conduct an “initial consideration” of claim and response. Could lead to claim or response (or part) being dismissed if “no reasonable prospect of success”.

8. Preliminary and final hearings • Preliminary hearings can deal with case management (like CMD as was) and/or preliminary issues (R 53 defines as “any substantive issue which may determine liability.) • Could be private or public or a bit of both, depending on issues being covered • Notice provisions so parties are not caught by surprise.

9. Timetabling, reconsideration, lead cases • R 45 gives tribunal the power to impose time limits in connection with presenting evidence, questioning witnesses or making submissions. • “Reconsideration” is new term for what was “Review”. Only one ground – necessary in the interests of justice. • R 36 – power to order lead case. Implications in terms of fees.

10. How do the rules deal with fees? • R8 says claims are to be “presented” in accordance with any Practice Direction made under R11. • PD allows presentation of claim on line, by post, in person at staffed office up until 4pm but not by fax or email because fee cannot be sent that way.

11. How do the rules deal with fees? • R11 says a claim is to be rejected if not accompanied by a fee or remission application. • If applying online you will not get through the portal without fee or ticking the remission box but if hard copy claim then easier to forget to include the cheque or postal order – danger of time bar.

12. Strike out for failure to pay fee • R40 – if fee not paid/ no remission application by specified date claim will be dismissed without further order. Would apply to failure to pay hearing fee by specified deadline. Reconsideration of dismissal possible and Tribunal can reinstate claim under r40(5) if fee paid by a date ordered by Tribunal.

13. Expenses order re fees • R75(1) and r 76(4) – Tribunal has discretion to make an expenses order requiring the loser to pay to winner in whole or in part the fees paid by the winner. Not subject to “vexatious, unreasonable, no reasonable prospects” etc test but it is not automatic and you should ensure that you make the necessary application for an order.

14. Fee charging levels • Type A = level 1 fees £160 and £230 • Type B = level 2 fees £250 and £950 • Fees for reconsideration of DJ (£100 A and B, reconsideration £100/£350,Er’s contract claim - £160, dismissal following withdrawal £60, JM £600 • Type A – jurisdictions specified in schedule 2, table 2 of ET and EAT Fees Order 2013. All other claims are Type B.

15. Fee groups/multiples • 2-10 bringing Type A pay issue fee of £320 and hearing fee of £460 (bigger “discounts” apply for 11-200 group and 201+) • 2-10 bringing Type B pay issue fee of £500 and hearing fee of £1900

16. Fee remission scheme - capital • Revised remission scheme – consultation response issued 9 Sept • Introduction of disposable capital test. • Partner’s income included • If fee of £1000 or less and disposable cap of £3000 or more then no remission • If fee of £1001-£1335 and disposable cap of £4000 or more then no remission

17. Revised remission scheme – capital test • Disposable capital includes any form of redundancy payment and also includes PILON, accrued holiday pay – see p.45 of consultation document response • Includes e.g. share in second home, money held in fixed rate bonds, lump sum from insurance policy but not UD settlement or award payment.

18. Disposable capital • Those under 61 with disposable capital between £3,000-£8,000 will spend no more than one third of their capital on fees, those with £8000+ will spend no more than one half of their capital on fees.

19. Remission – income test • Gross monthly income test introduced to replace passported benefit, gross annual income, net monthly income tests • Single with no children and gross monthly income of £1085 or less– full remission • Couple with no children, GMI £1245 or less – full remission • £245 per child added

20. Receipt of benefits • Those receiving Income related Employment and Support allowance, income support, income based Job Seeker’s allowance, pension credit guarantee credit, universal credit with earnings of less than £6000 all entitled to full remission if meet the capital test.

21. Partial remissions • If applicant has gross monthly income over relevant threshold then must contribute £5 to fee for every £10 they earn over the threshold. If over £4000 gross monthly income above threshold income then no remission to any extent (i.e. there is a monthly income cap – if above that then no remission irrespective of total fee to be paid).

22. Gross monthly income evidence • Original documentary evidence from DWP or HMRC of qualifying benefit – dated within the last month or • 3 months’ most recent bank statements + most recent wage slip(s) if paid employment • Most recent tax return and HMRC assessment to tax if self employed

23. Gross monthly income evidence • If other sources of income not proved in bank statements then alternative documentation to be provided. • Make sure the evidence is original and up to date. • Make sure you complete the form correctly and read the guidance • Retrospective remission app – 3 months