Engel v Ministry of Justice and Department for Communities and Local Government (Part Time Workers)

The transitional provisions in the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 distinguish proceedings before an Employment Tribunal from appeals to the Employment Appeal Tribunal. The reference to an “appeal” in the definition of “claim” concerns an appeal to an Employment Tribunal, not an appeal from an Employment Tribunal to the EAT. Accordingly, a claim presented before the Order came into force does not exempt a later EAT appeal from its lodgement fee. Each EAT appeal attracts a separate lodgement fee, subject to remission. Where appeals are combined for one hearing, only one hearing fee is payable.

Mr Engel brought proceedings concerning the pension and other entitlements of fee-paid judges. He challenged decisions of the Employment Tribunal concerning the application of an earlier decision, sought permission to pursue specified grounds of appeal, and appealed the Registrar’s refusal to refund two £400 lodgement fees.

The EAT, sitting at a preliminary and rule 3(10) hearing, considered whether certain grounds concerning Part-Time Workers Regulations 2000 and Employment Tribunal Rule 36(3) should proceed to a Full Hearing. It also considered whether the pre-29 July 2013 presentation of the Employment Tribunal claim exempted the later 2015 EAT appeals from fees.

1. The fee appeal was dismissed. Under the transitional arrangements in the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, no fee was payable for an Employment Tribunal claim presented before 29 July 2013, and no fee was payable for EAT proceedings where the Notice of Appeal was received before that date.

2. The definition of “claim” in paragraph 2 of the Order includes an appeal to an Employment Tribunal. The Employment Tribunal has both first-instance and appellate jurisdictions. It does not include an appeal from the Employment Tribunal to the EAT. Paragraph 15 therefore concerns Employment Tribunal proceedings, while paragraph 16 concerns proceedings in the EAT.

3. Paragraph 16 applies to all appeals to the EAT commenced by a Notice of Appeal under rule 3(1)(a) of the Employment Appeal Tribunal Rules 1993. The fact that the underlying Employment Tribunal claim, or an earlier appeal, was lodged before the relevant date did not exempt the two separate 2015 appeals. Each appeal required its own £400 lodgement fee, unless remission applied.

4. A hearing fee remained payable for the appeals permitted to proceed under paragraph 14 of the Order. Because those appeals were combined for one hearing, only one £1,200 hearing fee was payable.

5. The grounds in one appeal concerning alleged bias were dismissed, as were the remaining unarguable grounds. The ground concerning bias and the specified grounds concerning Rule 36(3), the comparator and the application to be joined as a lead claimant were permitted to proceed to a combined, expedited Full Hearing.

• Employment Appeal Tribunal: The EAT dismissed the fee appeal and specified grounds, while permitting other identified grounds to proceed to a combined Full Hearing.
• Employment Tribunal: Employment Judge Macmillan had refused the application under Rule 36(3) and made the earlier decisions challenged by Mr Engel. The relevant neutral citations were not stated in the judgment.