Tribunal Fees and Time Limits – New decision limits tribunal’s jurisdiction

  • No power for Tribunals to reconsider rejection on the basis of unpaid fees
  • Fee remission decisions may only be challenged by Judicial Review
  • ‘Reasonably Practicable’ to present a complaint where initial claim rejected for non-payment of fee
  • Time in Early Conciliation to be disregarded when considering ‘reasonable period’ under s.111 ERA 1996.

The introduction of the Tribunal Fees regime has had many far-reaching consequences, some more intended than others. But few anticipated the knock-on effect on time-limits which arose before the Tribunal in Hudson v NSL ET3100667/2014. The judgment gives some clarity on the various rules for reconsideration of rejection decisions and the Tribunal’s jurisdiction over fee remission.

Mr Hudson was summarily dismissed on 22 October 2013 and presented an ET1 claim form in time on 31 December 2013, accompanied by a fee remission application. HMCTS refused the fee remission application on a technicality (the supporting evidence being more than 1 month old) and proceeded to refuse two subsequent appeals, finally rejecting the last appeal on 14 May 2014 and rejecting the claim form.

Mr Hudson applied for a reconsideration under Rule 70 – ‘Reconsideration of Judgments’ – which the Tribunal refused to contemplate, since the fee remission decision was an ‘administrative decision’.

Finally, Mr Hudson tried submitting a new claim (under the new Early Conciliation procedure), with a new fee remission application, which was immediately accepted by HMCTS. However, the new claim was 6 months out of time. Mr Hudson sought to argue that it was ‘not reasonably practicable’ to present his claim in time, because HMCTS had wrongly refused his fee remission application. He further argued that ‘the complaint’ in s.111 ERA 1996, referred to this complaint, i.e. his second claim, which had been necessarily delayed by the fees dispute over the first claim.

Employment Judge Craft sitting at Havant, dismissed the claim as out of time. He found it was reasonably practicable to present the complaint in time, as Mr Hudson had done so. There was no jurisdiction for Tribunal judges to adjudicate on fee remission decisions by HMCTS; that was for the Administrative Court in a Judicial Review. Although Rule 40(5) permitted a claimant whose claim had been ‘dismissed’ to seek a reconsideration by the Tribunal, this did not apply to rejections under rule 11 (to which Rule 13 has no application) and, in any event, a decision to reinstate could only be effective if a fee was paid or fee remission application accepted.

The Employment Judge accepted that, if he was wrong on the first point, the period up to final refusal of the fee remission application and the period of Early Conciliation must both be discounted when determining whether the complaint had been presented within a ‘reasonable time’. He nevertheless found there had been undue delay by the claimant in the circumstances.

Finally, the Judge commented that the same result would not necessarily follow if the ‘just and equitable’ test applied, as in discrimination claims. It remains to be seen whether the Tribunals would consider extending time to accommodate a manifestly incorrect refusal of a fee remission.

Aidan Briggs represented the Respondent, instructed by Jane Crook of NSL Legal Services.