On 29th July 2013 the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 come in to force for cases where the claim is sent to the Respondent on or after this date.
These much debated and in some ways controversial regulations are written in simpler language, and are more straightforward than earlier editions. They are also shorter and have fewer schedules, and clearly have been designed to be user-friendly (perhaps with the increase in frequency of the appearance of the litigant in person in mind).
Some have heralded their introduction as the most radical change to be seen since the creation of the industrial Tribunal system by the Industrial Tribunal Act 1964.
The main changes can be divided in to two- fees related and case management powers.
Fees
- Fees are being introduced making employment Tribunals more like the civil courts, a cynic may say this is an attempt to raise revenue in difficult economic times.
- Once payment/remission application processed paperwork passed to local office. Time starts to run from when payment received by central office- still up to regional office to case manage and list.
- We do not yet know where central office will be.
- New online ET1 being developed with a link button to Barclaycard payment system.
- Note the Tribunal public enquiry line- 08457 959775
- Fee remission- partial remission may be allowed if the Claimant’s disposable income meets criteria as computed using legal aid means procedure, and full remission may be allowed if Claimant’s disposable income (computed on legal aid means criteria) is below £50 per week.
- Schedule 1 rule 11- Tribunal will reject ET1 if not accompanied by correct fee/remission application- although you could still argue it is in time.
- If hearing fee not paid by due date (as set out in hearing notice) the Tribunal will write to the Claimant giving a deadline for paying/making remission application- if not claim will be dismissed without further order- schedule 1 rule 40 (note r5- discretion to reinstate the claim if fee is paid).
- Fees also apply for Appeals to EAT.
- Level 1- basic cases – 1 hour hearing Judge alone £160 issue and £320 hearing fee. Redundancy payment or holiday pay claim.
- Level 2- £250 issue fee and £950 hearing fee includes Unfair Dismissal cases- simple ones as well as whistleblowing and discrimination, etc.
- Hearing fee to be paid 21 days before hearing listed- for local office to generate but national office to take payment- reminder 7 days before-query if not paid whether it will be struck out.
- £600 for JM- Judicial concern this will decrease take up.
- I anticipate that we will see least impact in discrimination cases where it is pursued in any event for the principle. We could see a surge in new claims before introduction date, but in reality it is hardly going to encourage people to resign and bring a claim if they are not sure what to do. It surely must therefore mean there will be a decrease in claims?
Case Management Powers
- The Tribunal will no longer automatically issue a default judgment if a Response has not been received by the 28-day deadline. A Judge will then decide whether they can determine the claim from the information they have before them. They will also be able to determine the extent to which a Respondent who has not presented a Response should be permitted to participate in any future proceedings.
- There is to be a new initial sift of ET1 and ET3 by a Judge to check that there is an arguable claim and defence (with the right to present submissions in writing as to why the claim/response should not be dismissed if the Judge thinks there is no arguable point) (rules 26- 28). The fact that pleaded issues will be subjected to scrutiny at this early stage should mean that hopeless cases will be dealt with quickly and that parties are assessing the merits of their claims at an earlier stage which may encourage settlement negotiations. It does, of course, increase the importance of proper drafting of the pleadings in the first place.
- Case Management Discussions (‘CMDs’) and Pre-Hearing Reviews (‘PHRs’) merge to become ‘preliminary hearings’ (rules 53- 56). These can be either in private (old CMDs) or public (old PHRs). It should be noted that private hearings can be called at less than 14 days notice and can be by phone.
- More case management powers to Judges- including specific provisions regarding ‘unless orders’ (rule 38) and hearings by electronic communication (rule 46).
- Tribunals will be able to conduct a detailed assessment of costs themselves rather than having to refer anything over £20,000 to County Court (rule 78).
- Tribunals will have the power to reject an ET1 if it does not contain certain required information, is not accompanied by the correct fee or remission application, or if it is ‘in a form which cannot sensibly be responded to’. It is not clear how this last requirement will be interpreted, but is could see particularly lengthy Details of Claim being rejected as well as poorly/inadequately drafted or illegible ones.
- If the deadline for the Respondent to present their ET3 has passed, they will no longer have to show that they have reasonable prospects of successfully responding to the claim or any part of it. Instead they will have to apply for ‘reconsideration’ of the decision and will be required to explain why the rejection of the Response was wrong.
- The procedure for making applications 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. It also slightly amends the requirement to copy an application to the opponent, now the applicant is simply required to send a copy of the application to the otherside. Informing them that they should write to the Tribunal as soon as possible if they wish to object to it.
- 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 (this is likely to be rare). Whilst this means Respondents will not longer have to apply for dismissal of proceedings, there is no timeframe in the rules for the Tribunal to dismiss proceedings and therefore Respondents may end up chasing the Tribunal.
- Decisions of the Tribunal can be ‘reconsidered’ either on the Tribunal’s own initiative or an application of a party. A Party must apply within 14 days of the date the original decision was sent out to the parties, explaining why the decision was wrong.
- A Tribunal may impose time limits on any aspect of the hearing, setting a timetable for the calling of evidence, cross examination and or submissions.
The question therefore is- are these new rules Evolutionary or Revolutionary? Many regional Tribunals have been implementing such case management powers for the last few years at least (for example with timetabling aspects of hearings); and these new rules, rather than make dramatic changes, serve to codify local practice unifying all Tribunals across the jurisdiction. Costs aside, it is not such a radical change after all then is it? We will have to see how the rules are interpreted in practice. But as a single piece of legislation, firming up case management and introducing fees, makes the Tribunal system an ever closer companion to the Civil Jurisdiction.