Underhill reviews the rules

In November 2011, senior judge Mr Justice Underhill was asked to lead a working group with an aim of a reviewing the Employment Tribunal Rules of Procedure. The results of that review were published on 29 June 2012. These make interesting reading and can be found here along with the draft rules here. We examine the key points in the review below.

These are:

• The working group proposed that once a claim form (called an ET1) and response (called an ET3) has been submitted to an Employment Tribunal, there is an initial sift stage. This would involve an Employment Judge considering what directions to give to the parties and also striking out claims or responses at an early stage which has no reasonable prospect of success. An example is a claim submitted which is out of time such as an unfair dismissal claim brought over 3 months after the date the employment terminated. 
• It is proposed that ‘Case Management Discussions’ and ‘Pre-Hearing Reviews’ become simply ‘Preliminary Hearings’. Case Management Discussions are traditionally used to determine what directions need to be put in place leading up to the hearing, such as setting the date when witness statements need to be exchanged. Pre-Hearing Reviews are to address important preliminary issues in a case. The lines between these two types can be blurred very easily, particularly in complex claims. The replacement of these with a Preliminary Hearing simplifies the rules in this regard. 
• The draft rules allow Employment Judges to set timetables for oral evidence and submissions during a hearing and cutting off parties who breach these times. It is known that many Employment Tribunals have a backlog of cases and encouraging efficient use of time during a hearing could assist in getting cases through the system. 
• There is a proposal to remove the cap of £20,000 on costs awards. Currently, where costs awards exceed this amount the Employment Tribunal has to refer cost assessments to the County Courts. By removing the cap, this could all be dealt with in the Employment Tribunal thus saving on costs and resources. 
• There is an attempt to simplify the rules on default judgments and the setting aside of default judgments. Such judgments are made where the Respondent does not submit an ET3 at all or does not submit an ET3 in time. 
• The rules around privacy, restricted reporting of cases and anonymity of parties will be brought in line with requirements of the Human Rights Act 1996 and European Union. 
• The working group has also suggested that guidance could be issued on matters of practice so parties have a better understanding of what is expected throughout the Employment Tribunal process.

The review reflects valuable input from those working in the very heart of the Employment Tribunal system. The Department for Business, Innovation and Skills are now considering the review and what steps to take next, which may include issuing a consultation on the draft rules. Another task to add to their very full list of employment law reforms!

As always, we will keep you updated on what happens next in our regular ebulletins.

The team at Pure Employment Law are all experienced Employment Tribunal advocates. If you need advice or representation on any Employment Tribunal claim, then please do not hesitate to contact us on 01243 836840 or [email protected].