Deangate Ltd v Hatley & Ors (Practice and Procedure)

For the purposes of rule 11(1), an application for fee remission may be made when an online claimant unequivocally chooses remission rather than payment, even though the prescribed supporting information is supplied later. The rules do not prescribe a particular application form. The claimant’s online election has the necessary attributes of an application when read in the context of the fee-remission scheme.

Accordingly, that application accompanies the online claim and the Tribunal need not reject it. Practical arrangements cannot determine the construction of the statutory scheme, although later provision of supporting material may be permissible.

Three former employees submitted Employment Tribunal claims online on the last day of the limitation period. Each stated that an application for fee remission had been sent by post. The remission forms and evidence were posted five days later.

The Employment Judge held that the remission applications accompanied the claims and, alternatively, that rule 6 permitted any non-compliance to be waived. The employer appealed, contending that rule 11(1) required rejection and that a later claim would have been out of time.

The Secretary of State for Justice intervened. The central issue was whether selecting the online option to seek fee remission amounted to an application which accompanied the claim.

1. Appeal dismissed. Each claimant’s online election to seek fee remission was an application for remission made at the time the claim was presented. It therefore accompanied the claim for rule 11(1).
2. The statutory scheme requires a claimant, on presentation, to choose between paying the issue fee and seeking remission. It prescribes information which must be supplied where remission is sought, but it does not prescribe a form for the application or state that an incomplete application is invalid. Form EX160 is an administrative device, not a statutory condition of a valid application.
3. The online question, although phrased in terms of an intention to submit an application, unequivocally identified the alternative selected. In its legislative context, ticking “yes” had the attributes of an application; the later form and evidence supplied the required detail. The Tribunal’s seven-day administrative practice could not affect the construction of the legislation, and the lawfulness of a blanket seven-day allowance was not decided.
4. The Employment Judge’s reasons were not accepted. If the remission application had first been made days after the claim, it would have been difficult to regard it as accompanying the claim. The result nevertheless stood because the application had been made online with the claim.
5. It was unnecessary to decide rule 6. The President observed that rule 6 would likely not permit a Tribunal to waive its mandatory duty under rule 11 to reject an unaccompanied claim.
6. By consequence, a postal or in-person claimant who states that remission is sought, with details to follow, may likewise have made an application for rule 11 purposes.

• Employment Appeal Tribunal: appeal dismissed; the Employment Judge’s conclusion that the claims could proceed was upheld, but on different reasoning.
• Employment Tribunal, Colchester: Employment Judge Ferguson rejected the employer’s jurisdictional challenge, holding that the remission applications accompanied the claims and alternatively that rule 6 could cure any non-compliance.