The Government has published new Employment Tribunal rules yesterday which will govern Employment Tribunal practice and procedure across England, Wales and Scotland from 29 July 2013. From this date also, a new fees regime will be introduced for new claims. Audrey Williams, Partner and Head of Discrimination at global law firm Eversheds comments:
“Preceding these new rules, Justice Underhill was commissioned to undertake a “root and branch” review of current practice, the results of which were to form the basis of reform. The changes revealed reflect the review and also the introduction of fees, and consequently affect most aspects of Tribunal practice and procedure: from submission of a claim to the assessment of costs. However, from the point of view of members of the public engaging in the tribunal system, the effects are likely to be subtle. Legal practitioners and representatives in the Tribunal on the other hand will need to take account of a significant change in approach.
“Details of the new fees regime are set out in a separate Order which explains when fees are payable and the amount due. The sanctions for unpaid fees are however set out for the first time in the new rules. First, a claim form will be rejected if it is not accompanied by the relevant fee or an application for remission. In the case of other fees not payable when the claim form is presented, if the fee is overdue then the Tribunal will send a notice specifying a new date for payment of the fee. If by that date the fee remains outstanding, and no application has been made for remission, then the sanctions depend on the nature of the fee. In the case of an issue fee or hearing fee, the claim will be automatically dismissed. The claimant can, however, apply for the claim to be reinstated if he or she pays the relevant fee within a certain timescale. In the case of non-payment of an application fee (for example an application for reconsideration of a judgment), the application will be dismissed. And in the case of non payment of a judicial mediation fee the mediation will not go ahead.
“Aside of the rules on fees, perhaps the most notable change for parties raising or opposing future claims in the Employment Tribunal will be a new initial sifting stage at which every case will be reviewed by an Employment Judge on paper to confirm there are arguable complaints and defences within the tribunal’s jurisdiction and give case management orders. This will be conducted without the involvement of the parties but will inevitably increase emphasis upon the contents of the claim and response forms.
“In practice, this is something that has already been happening in many regions for some considerable time. It is difficult to imagine that formalising the process will result in a great deal more cases being dismissed at an early stage, given that many cases involve factual disputes between the parties and, as such, it may not be feasible for Judges to take action without hearing the evidence. Nonetheless, the express requirement in the rules to check for weak claims may focus the minds of Judges carrying out the sift, encouraging more robust case management and a more effective use of the sift process. Claim and response forms which are inadequate or unclear are more likely to be challenged by a Judge, encouraging far closer scrutiny by authors of what is included.
“In conclusion, although the rules are now much shorter, and there are of course some changes, there is not a notable change in emphasis. Tribunal users will find that this exercise is more of a rewrite than one of wholesale change as regards the rules themselves. The introduction of fees however is a different matter!”