The Employment Appeal Tribunal has held that a Claimant’s stated intention on their Employment Tribunal claim form to make an application for remission constitutes an application for remission for the purpose of the Employment Tribunal Rules. The ruling is an important one – had the Appellant succeeded, the consequence would have been that tribunals had no jurisdiction to hear claims filed online with remission applications.
The online claim form asks whether a claimant intends to apply for fee remission. Applications for fee remission are, as a matter of practice, made on form EX160. It is not possible to submit Form EX160 as part of the online process. The Claimants ticked the box indicating they intended to apply for remission. The paper applications for fee remission were sent by post to the Tribunal five days later.
Under the Employment Tribunal Rules the Tribunal is required to reject any claim which is not accompanied by a Tribunal fee or a remission application. Deangate (the employer) argued that the Employment Tribunal had no option other than to reject the claim, as the remission application had not accompanied the claim form.
The Employment Tribunal decided that the Claimants’ application for remission by post should be treated as “accompanying” the online claim form for the purposes of the Employment Tribunal rules. The Employment Judge said that if she was wrong about this she would have “corrected” the Claimants’ failures under Rule 6, which states that a failure to comply with the rules will not necessarily void the proceedings. Deangate appealed.
The EAT rejected Deangate’s appeal, but not for the reasons given by the Employment Judge below. Mr Justice Langstaff did not consider that the Claimants’ EX160 forms sent in several days later could be said to have “accompanied” the claim. However he accepted an alternative argument raised by the Secretary of State as Intervener, that the Claimants had in fact made their application for remission on the online claim form itself. The Claimants were asked if they intended to apply for remission and had ticked the “yes” box. The relevant legislation provides for a choice to be made at the time of submitting a claim between paying a fee and applying for remission, and the Claimants in this case had clearly chosen between these options. It was the intention of Parliament that, however a claim was presented, there should be the opportunity to apply for remission. In this context the Claimants had applied for remission by ticking the “yes” box on the online form. The EAT observed that there was no reason that a stated intention to make an application for remission, with details to follow, should not also constitute an application for remission even if the claim was put in on paper.
Although it was not necessary to determine the appeal, Mr Justice Langstaff made observations on the Employment Judge’s alternative basis for her decision. He said that if the Tribunal had been obliged to reject the claim under Rule 11, the Employment Judge had no power under Rule 6 to “correct” the Claimants’ mistake. Rule 11 is a mandatory duty for the Tribunal. Rule 6 deals with the Tribunal’s response to the parties’ failure to comply with the Tribunal Rules.
Ben Collins represented the Secretary of State for Justice whose alternative argument formed the basis for the EAT’s ruling.
Deangate Limited v (1) Hatley (2) Patterson (3) Kurtz with the Secretary of State for Justice intervening UKEAT/0389/14/DM
The Employment Appeal Tribunal has held that a Claimant’s stated intention on their Employment Tribunal claim form to make an application for remission constitutes an application for remission for the purpose of the Employment Tribunal Rules. The ruling is an important one – had the Appellant succeeded, the consequence would have been that tribunals had no jurisdiction to hear claims filed online with remission applications.
