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New tribunal procedure rules

Posted on 12th March 2009
New legislation

In addition to the abolition of the statutory dispute resolution procedures the Employment Act 2008 introduces new procedural changes as from 6 April 2009. The key changes are set out below.

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Removal of the Acas fixed conciliation period

The fixed conciliation periods will be removed. This means that Acas will again have the duty to attempt to achieve a conciliated settlement throughout the tribunal proceedings rather than just for a fixed period. This change is welcome because the fixed period approach simply did not work. It did not encourage parties to reach an early negotiated settlement before the expiry of the fixed period, as was hoped. In practice the fixed periods frustrated the ability of Acas to assist employers in reaching sensible terms of settlement. This change restores the ability of Acas to help settle tribunal claims at any stage of the proceedings, even if it is the day before the hearing!

Extension of time applications for responding to the Claim Form

If an employer (respondent) wishes to apply for an extension of time to submit its Response Form (ET3) the application must be made in writing before the expiry of the standard 28 day time limit. A new rule applies where the respondent is legally represented. The respondent's solicitor must notify all other parties of the details of the application and explain how any objections can be made to the tribunal. Plus the solicitor must confirm in writing to the tribunal that this new obligation has been observed.

(Where a party is not legally represented the tribunal retains the responsibility for notifying all other parties etc.)

Mandatory default judgments

Employment Judges will have a mandatory duty to issue a default judgment against a respondent who fails to submit a valid Response Form (ET3) within the time limit, or who confirms that the respondent does not want to defend the claim. (Previously an Employment Judge had a discretion to issue a default judgment if he or she considered it appropriate to do so.)

There will still be the right for a respondent to apply for the default judgment to be set aside under the review procedures. To be successful the respondent will have to show that it has a good reason why it did not submit its ET3 in time. For example, there is sufficient evidence to show that the respondent did not receive the Claim Form in the post and was therefore unaware of the claim.

Dismissal on withdrawal

For the respondent, when a claim is settled or where the claimant withdraws his or her claim, it is prudent to apply to the employment tribunal for the claim to be "dismissed on withdrawal". This then prevents the claimant from starting a new claim based on the same facts and circumstances of the original claim. The approach has caused some claimants problems as they have been prevented from starting new claims in respect of the same complaint, even when they made it clear to all parties that this is what they intended to do.

To overcome this problem, amendments to the tribunal rules will mean that when the respondent's request for the claim to be dismissed is granted, the order will now read "the claimant may not commence a further claim against the respondent for the same, or substantially the same, cause of action (unless the decision to dismiss is successfully reviewed or appealed)". This new rule gives the claimant an opportunity to apply to the tribunal and explain that he or she wants to lodge a claim based on the same facts and circumstances.

Additionally, a new rule will result in the automatic dismissal of claims that have been settled with the assistance of Acas.

Video hearings

Any type of tribunal hearing can be conducted by use of electronic communications, including video link. Previously, only case management discussion hearings and pre-hearing reviews could be conducted remotely by telephone etc. The new rules provide that in cases where oral evidence has to be given, the employment judge must be able to hear and see the witness; plus the public must be allowed to hear the evidence but not necessarily see what is going on.

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