Proposed new rules

At the request of the government, Lord Justice Underhill recently carried out a review of tribunal procedures and made a number of recommendations on how the current rules should be adapted. The government, which has accepted Lord Justice Underhill’s recommendations, commenced a consultation about the proposals in September 2012.

Firstly, new ET1 and ET3 forms, which can be viewed at: www.bis.gov.uk/Consultations/employment-tribunal-rules-review-justice-underhill are proposed. And changes are also intended for how claims are initially processed.

Under draft rules 22–24, there would be a new express requirement for claims and employers’ response forms to be put through an initial paper sift. The purpose of this is for judges to identify claims and responses which have no reasonable prospect of success. The weak ones would be given an explanation of the problem and warned that, unless they request a hearing, their claim/response would be struck out (rejected in whole or in part).

Also, tribunal staff would be given the power to reject a claim where important data is missing and not just where the wrong form has been used — which is the current situation.

Under draft rules 17–21 and 37-38, the regime governing the setting aside of default judgments and the withdrawal of claims would be simplified and made more flexible. The changes to the rules on setting aside default judgments are intended to give judges more flexibility. And with the changes to the rules on the withdrawal of claims, the intention is that following a withdrawal by an employee, the employer will no longer need to take the further step of applying for the case to be dismissed.

Under draft rule 50, a tribunal would be given the express power to set timetables for presenting evidence, questioning witnesses and making submission. The idea is to prevent over-lengthy oral evidence and submissions via the use of a time cut-off, irrespective of whether the evidence-giving is finished or not.

There will be more opportunity for restricted reporting and anonymity orders to be granted under draft rule 55 (currently generally limited to cases involving sexual misconduct or disability discrimination). Specifically, judges are to be given greater discretion and flexibility in deciding when to make a relevant order. This is intended to better reflect recent higher court judgments and strike a balance between open justice and privacy.

New non-binding guidance (draft rule 7) on what the rules mean is to be provided. It is intended that the guidance (known as Presidential guidance, as it will come from the President of the Employment Appeal Tribunal) will be “illustrative, flexible and user-friendly”, setting out information on different procedures and giving good practice examples.

Under draft rule 31, where there are multiple claims, tribunals would be able to identify a lead case. The decision in the lead case would then automatically be binding on those other cases (i.e. without the need for a further hearing to establish this). A party would retain the ability to apply to have directions or decisions arising from the lead case, disapplied.

Case management discussions and pre-hearing reviews would be replaced by preliminary hearings under draft rules 39–52. Judges could use preliminary hearings for a number of purposes, including for a preliminary consideration of the claim, to make case management directions, to determine any preliminary issue, to consider whether a claim or response (or any part) should be struck out, to make a deposit order, and to explore the possibility of settlement or alternative dispute resolution.

The subject of the meetings would normally be stated in advance. While these meetings could be held in private, where a preliminary issue or strike out is being considered, they would have to be in public.

Additionally, it is intended that legal officers rather than judges would handle case management functions. Parties would have the right to ask (within 14 days of receiving the legal officers’ decision) for a judge to consider afresh the decisions made. This will be the subject of a consultation late in 2012.

It is also proposed that the rules on when deposits can be ordered to be paid by an individual are made more flexible. Specifically, it is intended that judges will be able to order a deposit to be paid in relation to just one or more elements of a claim (rather than the entire claim).

Draft rule 58 would amend the operation of written reasons (the explanation for why a judge has reached a decision). Written reasons can be requested in relation to any decision, not just the final judgment. However, while this service would continue to be free, judges will have the option, where appropriate, to keep written reasons very short.

Meanwhile, the cap on the amount of costs that can be imposed (recently increased to £20,000) would be removed under draft rule 72. Rather than having to refer the assessment of costs to a County Court, employment judges would be given the power to assess what costs are due themselves.

Non-legal representatives will be able to apply for their costs to be reimbursed by the other side. However, the costs would be limited by a cap (not currently set) which would be lower than the level at which lawyers can recover.

And where an award of compensation made by a tribunal has not been paid, interest will accrue from an earlier date. Currently, interest does not start to accrue until 42 days after the award is made (other than in equal pay and discrimination cases). The government intends that interest should start to accrue 14 days from the day after the date that the judgment was sent to the parties.

Further information is available at: www.bis.gov.uk/assets/biscore/employment-matters/docs/e/12-1039-employment-tribunal-rules-underhill-review.pdf