Paul Statham on the Government’s new, 2013 employment tribunal regulations

Pattinson & Brewer employment specialist Paul Statham was co-chair of the ELA (Employment Lawyers’ Association) working party which responded to the Government’s request for consultation regarding its planned reforms to the courts and tribunals subsidy system…

EMPLOYMENT TRIBUNAL RULES

The Government have now published the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Most of the provisions come into force on the 29 July 2013, the same date that employment tribunal fees are due to be introduced. The Rules follow Mr. Justice (now Lord Justice) Underhill’s review of Employment Tribunal Rules of Procedure which were published on the 11 July 2012.

The Rules are written in plain English and read a lot better than the previous Rules. New innovations include:-

1. Rule 3 provides wherever practicable and appropriate the Tribunal will encourage the use by the parties for the services of ACAS, judicial or other mediation, or other means of resolving the disputes by agreement.

2. Rule 26 provides that as soon as possible after acceptance of the Response, the Employment Judge shall consider all the documents held by the Tribunal to confirm whether there are arguable complaints and defences within the jurisdiction of the Tribunal. The Employment Judge may order a party to provide further information. The Employment Judge will then make a Case Management Order and will consider listing the case for a preliminary or a final hearing or may propose judicial mediation or other forms of dispute resolution.

3. Rule 27 and 28 allow the Employment Judge to order that the claim or response or any part of it shall be dismissed if the Employment Judge considers that the Tribunal has no jurisdiction to consider the claim or part of the claim or that it has no reasonable prospect of success.

4. Rule 44 makes it clear that any witness statement which stands as evidence in chief shall be available for inspection during the course of the hearing by members of the public attending the hearing unless the Tribunal decides otherwise.

5. Rule 45 allows the Tribunal to impose limits on the time that a party may take in presenting evidence and questioning witnesses or making submissions. It confirms the practice of time-tabling hearings.

6. Rule 51 and 52 simplify the Rules on withdrawal and dismissal of the claims. When a claim is now withdrawn by the Claimant it will be dismissed by the Tribunal so the Claimant may not commence a further claim against the Respondent raising the same or substantially the same complaint unless the Claimant has expressed at the time of the withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there will be a legitimate reason for doing so.

7. The distinction between Pre Hearing Reviews and Case Management Discussions has been abolished and there are now just Preliminary Hearings under Rule 53 at which the power to strike out all or part of the claim or Response may be exercised.

8. The Rules on written reasons for decisions have been simplified. Where reasons have been given orally, the Employment Judge shall announce that written reasons will not be provided unless they are asked for by any party at the hearing itself or by written request presented within 14 days of the sending of a written record of the decision. If written reasons are given they “shall be proportionate to the significance of the issue and for decisions other than Judgments may be very short”.

9. The Rules on review have been simplified and are set out in Rules 70 to 73.

10. For interim relief proceedings, for example in respect of a Trade Union Activities case, the Rules now say explicitly that “the Tribunal shall not hear oral evidence unless it directs otherwise”.

The Rules also make provision in respect of the introduction of legal costs.
Rule 11 provides that the Tribunal shall reject a claim if a Tribunal fee or a remission application does not accompany it. Where the claim is accompanied by a Tribunal fee but the amount paid is lower than the amounts necessary, the Tribunal are to send the Claimant a notice specifying a date for payment of the additional amount due, and the claim or part of the claim will be rejected if the amount due is not paid by the date specified.
If a remission application is refused in part or full, the Tribunal will send the Claimant a notice specifying a date for payment of the Tribunal fee and the claim will be rejected if the Tribunal fee is not paid by the date specified.
Rule 40 makes provision in similar terms for all the other fees that may be payable, such as a fee in relation to an application, a counter claim by the employer in a breach of contract claim, and in respect of Judicial Mediation. Again if the fee is not paid by the date specified in the notice, then the counter claim or application or Judicial Mediation will not take place. It is presumed that this Rule is to deal with the payment of the hearing fee, although there is no indication in the Rule as to the likely date to be specified in the notice for payment prior to the hearing.
Hidden in Rules 75(b) and 76(4) is the provision allowing the Tribunal to make an Order that a paying party make a payment to the receiving party in respect of a Tribunal fee originally paid by the receiving party. The Tribunal may make this Order “where a claim, counter-claim or application “is decided in whole or in part, in favour of that party”. Rule 78(1)(c) provides that a Cost Order may order the paying party to pay “a specified amount as reimbursement of all or part of the Tribunal fee paid by the receiving party”.

This means the Tribunal has discretion as to whether a fee should be reimbursed and how much. There may be an indication of future increases in Tribunal fees in Rule 78(3) which provides “for the avoidance of doubt, the amount of a Costs Order…may exceed £20,000. The reference to the sub-paragraphs includes the sub-paragraph relating to Tribunal fees.

Buckles HR Law have already tweeted that there is nothing in the rules to prevent a Claimant who is up against a time limit but cannot afford a fee, putting in a claim form with an application for a remission of fees will be effective to stop the time limit running, even if the application for the remission is later rejected when a notice to pay will be issued.