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New Employment Tribunals Rules of Procedure 2013

Posted on 24th July 2013
Briefing note

From 29 July 2013 the rules that govern how employment tribunal claims are handled are changing. This briefing note explains the most important new rules.

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Simon Quantrill Simon
Quantrill
Managing Partner Telephone: 01473 688100

The introduction of this Sift stage is designed to identify those cases where the merits are so poor they should not be allowed to proceed and thereby save time and costs for both parties

Updated ET1 and ET3 forms

New ET1 and ET3 forms must be used from 29 July, but as yet the final versions have not been published.

On the ET1 the claimant is required to specify the amount of compensation claimed together with the calculation. Both can be revised during the case but the idea is to get the claimant to think about the value of his or her claim from the outset so that unrealistic expectations can be identified at an early stage and commented upon in the ET3. The employment law solicitors at Quantrills welcome this change as far too many claimants start claims without any real idea how much their claim is worth.

The claimant will also be required to set out “the facts on which you rely”. This may prove to be a more taxing obligation on the claimant rather than to set out “the grounds” as required under the old rules.

New rules of rejection

A claimant’s ET1 will be rejected by the employment tribunal if it:

  • is not made on the new ET1 form
  • does not contain the name and address of each claimant and respondent or
Additionally a claim may be rejected if an employment tribunal judge considers the tribunal has no jurisdiction to hear the claim or if the ET1 is one that “cannot sensibly be responded to or is otherwise an abuse of the process”.

The idea behind the above rules is to weed out those claims that should not proceed because of some fundamental problem. Respondents should be helped by these new rules of rejection because they should have less need to spend time and costs preparing an ET3 for a claim that has little or no rights to proceed.

Reconsideration

The claimant has the right to ask the employment tribunal for a reconsideration of rejection. Application must be in writing (within 14 days of the date the notice of rejection was posted) and must be made on the basis that either “the decision to reject was wrong” or “the notified defect can be rectified”.

Rejection of ET3s

For employers their ET3s will be rejected if it:

  • is not on the new ET3 form
  • does not set out the respondent’s full name and address, or states whether the respondent wants to resist any part of the claim or
  • is received outside the specified deadline of 28 days of the date the tribunal sent out a copy of the claim to the respondent, unless the respondent includes an application for an extension of time.
If an ET3 is rejected, the respondent can apply for a reconsideration of the rejection on the same grounds as claimants.

Applying for an extension of time to present an ET3

Under the new rules a respondent will be able to apply for an extension of time to present their ET3 either before or after the original 28 day time limit. There is no need for the respondent to give reasons why it cannot comply with the time limit. If the time limit has passed, when the application is made, the key change is that the respondent will no longer have to show it has a reasonable prospect of successfully responding to the claim or part of it. The tribunal no longer has to consider whether it is just and equitable to grant an extension.

This change is welcome as it should be more helpful to employers and save time and costs in having to submit short holding ET3s and seeking to amend it later, when it proves difficult to comply with the 28 day time limit.

Introduction of the Sift stage

This is a fundamental change. After both the ET1 and ET3 have been received an employment tribunal judge must consider whether a claim should be struck out because it has no reasonable prospects of success, or because the tribunal has no jurisdiction.

Additionally, for cases that are allowed to proceed, the judge must consider what case management directions are required to get the case ready for final hearing.

The introduction of this Sift stage is designed to identify those cases where the merits are so poor they should not be allowed to proceed and thereby save time and costs for both parties, especially the respondent, and of course the tribunal service.

This new stage is not without its problems. For example, it may well prove difficult for the merits to be assessed on paper in cases where there is a significant factual dispute. Without hearing the evidence and cross-examination answers it will not be possible to fairly reach a conclusion about the merits. Discrimination claims are often fact sensitive and in practice it’s likely the judge will be slow to strike out such a claim unless it is obviously without merit. In due course case law will no doubt develop guidance on how and when the power to strike out can be used at this stage.

The advantage of the Sift stage is that claimants will have to consider the merits of their claims from the outset. If this results in less tactical or poorly thought out claims being started then this rule change will have been a success.

Preliminary hearings

Under the new rules Case Management Hearings and Pre-Hearing Reviews disappear and are replaced with Preliminary Hearings which allow the tribunal a wide discretion to deal with both substantive and case management matters at the same time. Under the old rules this was not readily possible. This change should save time and legal costs for both parties.

Withdrawal

When a claim or part of it has been withdrawn the tribunal should automatically issue a judgment formally dismissing it. This change will save the respondent’s solicitor writing to the tribunal asking for an order dismissing the claim.

Reconsideration of judgments

The current review procedure of tribunal judgments is being replaced with the ability of a party to apply for a decision of the tribunal to be “reconsidered”. If the judge believes there is merit in the application the other side will be asked for their views and if necessary a hearing will be arranged.

Witness evidence

The rules of evidence in the civil courts do not apply in the employment tribunal. This change is intended to help judges run cases as they see fit.

A judge will now have the power to exclude witnesses from the tribunal room until after they have given evidence, if it is in the interests of justice to do so.

Costs

The key change is that where a party brings or defends a claim that “had no reasonable prospect of success” the tribunal may make a costs order. The old test relating to a claim or defence being “misconceived” is abandoned.

Additionally, the tribunal will have the power to make unlimited cost awards. The old £20,000 limit goes, although parties may still want high value cost claims to be dealt with in the county court under the detailed assessment procedure.

Deposit orders

The tribunal will now have a new wider power to make a deposit order in respect of “any specific allegation or argument in a claim or response” considered to have little reasonable prospect of success. Previously a deposit order could only apply to the whole claim. This change may limit the number of claims that adopt an “everything to be included” tactic. A tribunal can now encourage a claimant to withdraw the hopeless parts of the claim and let the parties concentrate on the important parts. 

Questions and answers

Do the new rules apply to all cases from 29 July 2013?

Yes, as far as we can tell from the new regulations.  They say the rules apply “to all proceedings to which they relate.” We think this means the new rules apply to cases that were started before 29 July as much as those that are commenced after this date.

Where are the new rules set out?

The new rules are set out in schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237).

Why are the rules changing?

The new rules are a result of a fundamental review carried out in 2012 by Lord Justice Underhill who was tasked to identify how the existing rules could be improved and made more efficient. His recommendations included the above changes and for the rules to be rewritten in less legal terms. It remains to be seen if the new rules will help the parties achieve cost effective and reliable outcomes. Our fear is that the tribunal service is underfunded and unnecessary delays and poor decisions will continue to be a feature of employment tribunal litigation, largely due to a lack of “judicial resources”.

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