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Education HR e-briefing 544: New Rules for Employment Tribunals

  • United Kingdom
  • Education - Briefings

04-06-2013

Education institutions will be interested to learn that yesterday, new rules governing Employment Tribunal practice and procedure across England, Wales and Scotland have been published.  With very limited exceptions (covering employers’ contract claims and appeals against health and safety and non-discrimination notices and levy appeals) the rules will apply to all ongoing and new cases from 29 July 2013, the same date on which the new fees regime will be introduced for new claims (see our eBrief here for details of fees).

The new rules include:

  • Sanctions for non-payment of fees
  • An initial sift stage at which every case will be reviewed by an Employment Judge on paper to confirm there are arguable complaints and defences within the tribunal’s jurisdiction and give case management orders. 
  • Removal of the £20,000 limit on costs that can be awarded by a tribunal and more flexibility in making deposit orders.
  • A rule expressly permitting Tribunals to limit oral evidence and submissions at hearings
  • Non-prescriptive guidance from the Presidents of Employment Tribunals in England and Wales and Scotland to supplement the new rules and aid consistency of approach.
  • A less rigid approach to applications to extend time to respond to a claim
  • Shorter time limit for employer contract claims
  • A slightly more flexible regime on private hearings, restricted reporting and anonymity.
  • Making it easier to dismiss withdrawn claims.
  • A more flexible regime for reconsidering judgments.
  • An emphasis on cooperation by the parties.
  • Changes in terminology: “preliminary hearings” will take the place of pre-hearing reviews (PHRs) and case management discussions (CMDs).
  • A mandate to encourage mediation and settlement.

Non payment of fees

Details of the new fees regime are set out in a separate Order. However, although that Fees Order explains when fees are payable, and the amount due, it does not say what will happen if fees are unpaid. The sanctions are now set out in the new rules.

A claim form will be rejected if it is not accompanied by the relevant fee or an application for remission.

In the case of other fees not payable when the claim form is presented, if the fee is overdue then the Tribunal will send a notice specifying a new date for payment of the fee.  If by that date the fee remains outstanding, and no application has been made for remission, then the sanctions depend on the nature of the fee.  In the case of an issue fee or hearing fee, the claim will be automatically dismissed. The claimant can, however, apply for the claim to be reinstated if he or she pays the relevant fee within a certain timescale.  Whether the claim is reinstated will be determined by an Employment Judge.  In the case of non-payment of an application fee (for example an application for reconsideration of a judgment), the application will be dismissed.  And in the case of non payment of a judicial mediation fee the mediation will not go ahead. 

The initial sift

Much has been made of the initial sift stage that the rules introduce.  Essentially what will happen is that, once a response to a claim has been presented, the case file will be referred to a Judge with a view to identifying claims that the tribunal does not have jurisdiction to consider (for example claims made out of time) and claims or responses that appear to have no reasonable prospect of success.  If such a claim is identified, the Judge will write to the claimant (or, in the case of an apparently weak response, the respondent) asking that party to reply by a fixed date setting out the reasons why their claim should not be dismissed. If the party does not respond the claim (or response as the case may be) will be struck out automatically. If the party does reply then the Judge will decide whether to hold a preliminary hearing to look into the matter further.

In practice, this is something that has already been happening in many regions for some considerable time.  It is difficult to imagine that formalising the process will result in a great deal more cases being dismissed at an early stage, given that many cases involve factual disputes between the parties and, as such, it may not be feasible for Judges to take action without hearing the evidence. Nonetheless, it is hoped that the express requirement in the rules to check for weak claims will focus the minds of Judges carrying out the sift, encouraging more robust case management and a more effective use of the sift process.

Deposit and costs orders

The substantive criteria for awarding costs or making deposit orders are unchanged. However, one change that the new rules do make is to permit Employment Judges to make costs awards exceeding £20,000 following a detailed assessment. At present such assessments have to be carried out in the County Court. 

In addition, following changes made to the Employment Tribunals Act 1996 by the Enterprise and Regulatory Reform Act 2013, it is now clear that a tribunal can make a deposit order as a condition of pursuing a particular allegation or argument and need not make the pursuit of the entire complaint or response conditional on the deposit being paid.

Limiting time spent on evidence, cross-examination and submissions

Some judges already limit the duration of evidence, cross-examination and submissions at hearings, relying on their general power to manage proceedings as they see fit. This practice is likely to become more widespread with the express endorsement of this practice in the new rules.  Those representing parties at hearing will need to ensure they identify and focus on the key issues in their case.

Presidential guidance

The two Presidents of Employment Tribunals (for England and Wales, and for Scotland, respectively) will have the ability to publish guidance as to matters of practice and as to how the powers conferred by these Rules may be exercised in typical situations.  This new power has three aims: enabling some questions which are essentially matters of good practice or of internal procedure to be addressed more flexibly and informally than if they had to be the subject of rules; helping parties to understand what to expect, or what is expected of them, at various procedural stages; and ensuring a consistent approach across the regions (although not to provide uniformity of practice between England and Wales on the one hand and Scotland on the other).

It remains to be seen what subjects the Presidents will consider appropriate for guidance. It is unlikely, however, that the topics covered will be extensive.

Extending time for responding to claims

The new rules expressly allow employers to ask for an extension to the 28 day time limit for responding to a claim even after the time limit has expired.

Employer counter-claims

Under existing rules an employer has six weeks to bring a breach of contract counter-claim against an employee who has him- or herself brought a breach of contract claim in the tribunal.  The new rules reduce the time limit to 28 days and make it clear that any such counter-claim must be set out in the response to the claim. Under the new fees regime, a counter-claim will attract a fee of £160.

Private hearings and concealing the identity of witnesses

The current Rules provide a narrow regime governing the circumstances in which tribunals can make orders protecting parties’ and witnesses anonymity, restricting reporting of proceedings and holding hearings in public.  In a handful of cases the courts have ruled that the existing powers are not always sufficient to protect individuals’ rights to privacy under the Human Rights Act 1998 and employment rights under EU law.

The new rules provide for a more flexible regime which will enable tribunals to make orders in a wider range of circumstances.  However, the  rules make clear that, when considering making an order, a tribunal must still give full weight to the principle of open justice and the right to freedom of expression.

Dismissing withdrawn claims

Under the new rules, when a claimant withdraws a claim (whether because the claim has settled or for some other reason), the default position will be that the claim will be automatically dismissed without the need for the respondent to make an application or the settlement agreement to contain any particular form of wording.  The effect of dismissal is that the claimant will not be able to start a new claim against the respondent making the same or substantially the same allegations.

Automatic dismissal won’t apply if the claimant says they want to reserve the right to bring a new claim in the future and the tribunal is satisfied there would be a legitimate reason for bringing a new claim, or if the tribunal believes dismissal would not be in the interests of justice.

The impending fees regime introduces a compulsory fee for a respondent applying to dismiss a withdrawn claim. However, the new rules providing for automatic dismissal mean that respondents will have no need to make such an application in future.

Reconsidering judgments

The existing regime enabling a tribunal to review its own judgments on specified grounds will be made somewhat less prescriptive by the replacement of the five specific grounds for review with a single ‘interests of justice’ ground. 

A more significant change will be brought about as part of the new fees regime as many applications for review (or reconsideration as it will now be called) will attract a fee. 

Cooperation

The existing rules already say that parties and representatives must assist tribunals to further the overriding objective to deal with cases justly.  The new rules make it clear that this means parties are expected to cooperate generally with each other and the tribunal.

There is also a new requirement to copy in all other parties on any correspondence with the Tribunal.

Encouraging mediation and settlement

A new rule provides that tribunals shall, wherever practicable and appropriate, encourage and facilitate the use by the parties of the services of ACAS, judicial or other mediation, or other means of resolving their disputes by agreement.

Link to Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013: http://www.legislation.gov.uk/uksi/2013/1237/schedule/1/made