|Text of Michael Foster's article in ELA (Employment Lawyers Association) News March 2014 |
"Presenting in time and the frustrations of fee remission"
With the recent introduction of fees and the possibility of exemptions, questions have been raised as to whether the time limit for issuing an employment claim is met simply by the filing of the application together with the appropriate request for remission. The practice of tribunals in acknowledging the ET1 is to place the application on hold until the issue of the fee has been established (ie exemption or requirement to pay). This itself is subject to a number of appeals, which can take many weeks. In a recent claim pursued by my firm, the respondent’s
solicitors challenged whether the claim was presented in time as no case number was allocated and, of course, the respondent is not served with documentation until the formalities are complete. The question therefore is whether the filing of the application and any form of exemption is itself ‘presentation’ within the meaning of the tribunal rules, or is it only when the application is perfected, given a number and served, that the presentation is valid?
Tribunal Service’s approach
Although no judicial decision has yet been registered, ELA Briefing readers may be interested to know of an exchange of correspondence with Her Majesty’s Courts and Tribunals Service. Kevin Sadler, the Director of the Civil and Family
Tribunals Section of the Department, has confirmed to me the Tribunal Service’s approach (with the caveat that the ultimate determination about when a claim is presented is for the judiciary and individual cases). Sadler wrote: ’A claim is considered to have been presented to the tribunal when it is lodged in compliance with the employment tribunal rules of procedure – specifically rules 10 and 11 (and the associated practice directions made under rule 8). The rules require that a prescribed form is used, that certain required information is given and that a valid fee or a remission application has been submitted. If a claim is so
submitted, it is taken to have been presented in accordance with the rules (subject to a later judicial decision to the contrary). Any work to assess remission applications will take place afterwards, ie once the “hurdle” of presentation has
been passed.’ The letter goes on to say that there is a technical distinction
between a presented claim and an accepted claim under the legislative framework. A claim is ’accepted‘ once the fee has been paid or the remission application is determined. A remission refusal carries the right of appeal and, if the appeal process is ultimately unsuccessful, there is still a final opportunity to pay: ‘Importantly if and when the fee is taken or the remission application is successful (whether after an appeal process or otherwise), the claim would be accepted from the original date of its presentation.’
Fee remission delays
While this is helpful, it is of course not the only problem encountered by ELA members. Readers will be aware of the discussion on ELA’s LinkedIn page about fee remission. It appears that remission applications were taking around
seven weeks over Christmas. Members have also reported that remission applications have been rejected on the basis of inadequate financial evidence, despite claimants complying with the guidance on the evidence required. The apparent impossibility of finding anyone to speak to on the telephone
to address these issues is clearly a source of much frustration. It is to be hoped that these too will be resolved once the system beds down.
Michael Foster, Michael Foster Law
16 BRIEFING Vol. 21 No. 2
MICHAEL FOSTER LAW LAUNCH NEW CHARITY SERVICE
Today Michael Foster held the second of our "Learning Lunches" on employment law for local charitable and voluntary groups today in partnership with Hastings Voluntary Action. Around 20 delegates attended to learn more about how to support their employees and volunteers and avoid problems arising. Michael also announced the launch of his new discounted legal service for the voluntary and charitable sector.
HVA manager Steve Manwaring (right) with Michael Foster at today's HVA "Learning Lunch"
Speaking after the event Michael said, "As part of our social responsibility policy we strive to give back to our community. We are therefore pleased to announce the launch of discounted legal services for the voluntary and charitable sector. In these changing times many charities and voluntary organisations are already employers, but even those smaller groups who rely solely on volunteers are not immune to legal challenges. It is important to protect budgets through effective policies and contracts and to get specialist advice if a problem occurs. That's why we are offering organisations who are members of Hastings Voluntary Action or Rother Voluntary Action, a special rate for our services."
For more information on the scheme please contact us on 01424 203040
For more information on Rother Voluntary Action or Hastings Voluntary Action click on the logos below to be taken to their websites (external links)
SIERRA LEONE OLYMPIANS COME TO HASTINGS
MIchael Foster Law are proud to be sponsoring the Sierra Leone Olympic Team - Ola Sesay and Ibrahim Turay. We wish them luck in the forthcoming Games!
Michael Foster with Ibraham and Ola in our Lacuna Place Offices
For more information on the background to our involvement with Sierra Leone visit the BBC News website (external link)
MICHAEL FOSTER PROVIDES LOCAL BUSINESSES WITH HOT TIPS ON THE NEW EQUALITY ACT AT 1066 LEARNING LUNCH
Michael Foster was guest speaker at the first of a series of Learning Lunches orgainsed by Ten Sixty Six Enterprise. Michael
Foster has been a solicitor for 30 years, but as he puts it himself, he took a sabbatical for 13 years to represent the constituency
in Westminster! His specialism is employment law and he used the lunchtime session to talk about equality and diversity and what
the new Equality Act will mean to local businesses. Michael said: "I hope everyone got a flavour of the Equality Act and better
understands the law in this area and what the pitfalls are. The cost of getting it wrong can be ruinous. Whilst claims for unfair
dismissal can now amount to more than £80,000, the compensation for a claim of discrimination is unlimited." The Learning
Lunches will be scheduled throughout 2011 with key issues of interest to businesses being discussed and debated at each one.
Business Services Manager at Ten Sixty Six Enterprise, Sean Dennis, said: "I thank Michael for making our first learning lunch
so successful. His presentation was really informative and helpful for the business people who attended and certainly highlighted
a number of points that must be better understood."
For details of other learning lunches currently being planned please contact firstname.lastname@example.org or call
Stephen on 01424 205512.
(Photo shows Michael and Sean Dennis of Ten Sixty Six Enterprise)
Michael Foster celebrates “First Hundred Days” of new law practice in Hastings
Snow may have prevented the official launch of Michael Foster’s new legal practice last December but the former MP for Hastings and Rye pulled out all the stops for a rescheduled celebration at his Lacuna Place office on 3rd February. The former Lord Chancellor Charlie Falconer and Mayor Kim Forward joined members of the business and professional community to welcome the new practice to the town centre. Lord Falconer, who takes a special interest in Hastings having agreed regeneration funding under the last Government, commended Michael as “able and honest” and “well respected across the political spectrum.” He said the return of the former MP to the legal world meant that “Politics loss is law’s gain.” Michael Foster comments: “It’s been exciting to return to the law, and my recent experience as Equalities Minister has given me particular expertise in helping employers and employees with equality and discrimination matters. Our new offices in Priory Quarter are a great base from which to serve local people and businesses.”
Photo shows (l to r) Michael Foster, Mayor Kim Forward, Lord Charles Falconer