New Employment Tribunal Rules of Procedure: the essentials

New Employment Tribunal Rules of Procedure: the essentials

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Author: Adele Hayfield

Users of the Employment Tribunals will have to get to grips with a new set of procedural rules. The new rules are introduced from 29 July 2013.

The new rules have now been published and aim to simplifying the existing rules which have been criticised for being inadequately drafted in places and not very "user friendly".

These changes will be introduced at the same time as the requirement to pay a fee to lodge a tribunal claim comes into force. At the moment, unlike in the civil courts, no fee is required.

Some of the main changes include:

Presenting a claim: The Tribunal will have the power to reject a claim if it does not include certain required information, if it is not accompanied by the prescribed fee or, if it is "in a form which cannot sensibly be responded to". It is unclear how this last requirement will be interpreted, but it may well impact on unrepresented Claimants with poor language skills who have inadequately drafted their claim form or whose details of claim are illegible. It is possible that particularly lengthy claim forms may also be rejected under these rules. If a claim is rejected in this manner a claimant may apply for a "reconsideration".

Rejecting Responses: If the deadline for an employer to present their Response has passed they will no longer be required to show that it has a reasonable prospect of successfully responding to the claim or part of it. The Respondent will now have to apply for a "reconsideration" of the decision and will be required to explain why the rejection of the Response was wrong, or how any defects on the Respondent's form can be rectified. Practically speaking it is likely that employers will wish to rely on the same types of arguments as they currently use when applying for a Review of a default judgment.

Default Judgments: The Tribunal will no longer automatically issue a default judgment if a Response has not been received by the 28-day deadline. An Employment Judge will decide whether they can determine the Claim from the information they have before them. They will also be able to decide the extent to which a Respondent who has not presented a Response should be permitted to participate in any future proceedings.

Sift stage: One of the most important changes is the implementation of a sift by an Employment Judge after a Response has been accepted by the Tribunal. An Employment Judge will consider all of the documents it has and decide (based on that information) whether the Claim or Response, or any part of it, should be dismissed, either because there are no arguable complaints/defences or for lack of jurisdiction.

The Employment Judge carrying out the sift may also decide what case management orders are required to get the case ready for final hearing, decide that a preliminary hearing should be listed or propose judicial mediation at that stage. The fact that pleaded issues will be subjected to scrutiny at that stage is likely to mean that hopeless claims are identified and dealt with more quickly. It may also mean that the parties will assess the merits of their cases at an earlier stage and encourage settlement negotiations. From a practical perspective, it is important that the parties ensure that the pleadings are comprehensively drafted in the first place.

Preliminary hearings: The new rules replace Case Management Discussions and Pre-Hearing Reviews with "Preliminary Hearings" at which both case management and substantive preliminary issues may be decided. The parties will have to be prepared to deal with technical jurisdictional issues such as time bar or amendment of claim arguments at these hearings. This may mean that these types of hearings last longer in practice but may ultimately reduce parties' costs as they will not need to attend two separate hearings.

Applications: The procedure for making an application is relaxed as there is no longer a requirement to explain how granting the order sought will assist the Tribunal in dealing with the case efficiently and fairly. Additionally, the requirements to copy an application to opponents is slightly amended; all that will be required will be for the applicant to provide their opponent with a copy of the application and inform them that if they wish to object to it, then they should write to the Tribunal as soon as possible.

Withdrawal and Dismissal of Claims: Where a claim or part of it has been withdrawn, the Tribunal will automatically issue a judgment formally dismissing the claim, unless at the time of withdrawing the claim, the Claimant specifically expressed a wish to reserve the right to bring a further claim against the Respondent and they have a legitimate reason for doing so, which is likely to be rare. This should mean that employers no longer have to apply for dismissal of proceedings, however, as there is no timeframe stated in the rules for Tribunals to dismiss proceedings, parties may end up chasing the Tribunal.

Reconsideration of decisions: Decisions of the Tribunal can be "reconsidered", either on the Tribunal's own initiative or on the application of a party. A party must apply for a reconsideration in writing within 14 days of the date the original decision was sent out to the parties, explaining why the decision was wrong. This new type of application will be similar in nature to the current "review" process.

Timetabling: a Tribunal may impose time limits on parties in terms of presenting evidence, questioning witnesses or making submissions. In practice this happens already and can be quite effective in focusing the parties' minds on the core issues in the case.

Costs assessment: The new rules remove the requirement for costs awards to be referred to the county court for detailed assessment. Employment Judges will be able to carry out this exercise themselves.

Comment

There are big changes afoot in the Employment Tribunals and the new rules provide a good framework to manage cases more flexibly and efficiently. There is no doubt that the rules are expressed in plain English so are more user friendly.

When teamed with the introduction of fees and the proposed mandatory pre-claim conciliation process (which is due to come in 2014), one would hope that new style management of cases will lead to less meritorious cases clogging up the system with legitimate claims proceeding to full hearings in shorter timescales.

Ultimately we will have to wait and see what impact the new rules will have in practice but they do appear to formalise certain practices which are accepted in some Tribunals around the UK already.

About the author

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Adele Hayfield

Partner

03700 86 4226

Adele is an experienced Employment lawyer who provides employment advice to commercial clients and employment advice for individuals on a broad range of contentious and non-contentious employment issues. These include discrimination & equal pay, executive appointment & exits, redundancy & reorganisation, employment contracts & handbooks, employment law advice, and settlement agreements & terminations. She is particularly experienced in Tribunal advocacy.

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