Tribunal reform: case study

Rachael Wright, of Osborne Clarke, provides a case study illustrating how the new tribunal rules of procedure, which come into effect on 1 October 2004, will work in practice.

Introduction

This week's topic of the week article considers four different variations on a tribunal claim, and in doing so examines various aspects of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

Situation

Sandra had worked as a waitress in a cocktail bar for three years until her dismissal on 12 October 2004. She claims that just before her employment at the bar ended her employer, Tony, made amorous advances towards her, which she rejected. She also claims that afterwards Tony told her that he felt that there were not enough male waiters working in the bar and that he was going to have to 'let her go in order to bring some men in', adding that 'things could have been different if she had been a little nicer to him'. Sandra wishes to claim unfair dismissal and sex discrimination at an employment tribunal.

Sandra submits her claim on 31 October 2004, well within the three-month time limit for unfair dismissal and sex discrimination claims. She submits it in the form of a letter but provides all the relevant information required by the new claim form, including details about herself, the claimant, and Tony, the respondent. She also provides the useful information requested on the new claim form about the fact that she now has a new job and how much she earns. Although she has not submitted her information on the new claim form, because her claim is submitted prior to 6 April 2005, it is accepted. On or after 6 April 2005 claimants and respondents will be obliged to use the prescribed claim and response forms: if they do not, their claims and responses will not be accepted.

Scenario one

The requirements: Tony must submit his response so that it reaches the tribunal within 28 days of the date on which he was sent a copy of the claim. As his response will need to be submitted well before 6 April 2005, it need not be on the prescribed form, but must contain all the required information.

If Tony requires an extension of time in which to submit his response, he must submit his application to the tribunal within the original 28-day time limit, explaining why he cannot comply with the time limit. Such an extension will be granted only if the tribunal chair is satisfied that it is 'just and equitable' in the circumstances.

Tony's actions: Unfortunately, Tony does not read the information that the tribunal provided when it sent him a copy of Sandra's claim, so is unaware of the above rules and of the date by which he must submit his response. He chooses to ignore Sandra's claim for two months, just to annoy her. Later, he decides to write a cutting letter to the tribunal, saying that running his busy cocktail bar has left him no time to deal with the claim. In his letter, Tony gives no reason why he dismissed Sandra but refers to her as a troublemaker.

The likely outcome: Because Tony has failed to respond in the correct way and within the time limit, the tribunal is likely to inform him that his response has not been accepted and that, unless he applies within 14 days to have that decision reviewed on grounds of administrative error or in the interests of justice, a tribunal chair may now deliver a judgment on Sandra's claim without a hearing. Such a judgment is known as a default judgment and can decide either liability alone, or liability and remedy.

If a default judgment is delivered, Tony may apply, within 14 days of the date on which the default judgment is sent to the parties, to have the default judgment reviewed. His application must include his proposed response to the claim, an application for an extension of the time limit for presenting the response and an explanation of why he did not respond to the claim on time. The tribunal chair may revoke or vary the default judgment if Tony has a reasonable prospect of successfully responding to the claim.

Scenario two

Tony's actions: Tony responds in the correct way to Sandra's claim, giving all the necessary information relating to Sandra and her dismissal and submitting it within the correct timescale. However, Tony does not wish to go to a tribunal about the matter as he feels that it may bring bad publicity for the cocktail bar and he does not wish to throw away money on lawyers' fees. He decides that the best solution is to make an offer of settlement to Sandra.

ACAS conciliation: The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 introduce, in relation to certain claims, a fixed period for ACAS to broker a settlement. In relation to these claims, ACAS is unable to help with settlement outside the fixed conciliation period and, if the parties want to settle, they must instruct solicitors to draw up a compromise agreement.

The standard conciliation period is 13 weeks from the date when the tribunal sends the claim to the respondent, although there is a shorter period of seven weeks for categories of claims where the cases are likely to be disposed of quickly. However, there is a certain category of cases for which ACAS has an ongoing duty to conciliate until the case is disposed of. This category comprises discrimination, equal pay and whistleblowing cases, which are inherently complex.

As Sandra's claim is one of discrimination, Tony does not need to worry about negotiating a settlement with Sandra within a fixed conciliation period. The parties will be able to reach a settlement right up until the date of the hearing.

Scenario three

Tony's representative: Tony responds in the correct way to Sandra's claim but employs a lawyer from 'Rent-a-brief' to represent him at tribunal. However, the lawyer ignores tribunal orders, refuses telephone calls from Sandra's legal representative and generally causes a number of problems during preparation for the hearing.

The likely outcome: In some circumstances a tribunal may make a 'wasted costs order' against a party's representative. Wasted costs are defined as any costs incurred by a party that are the result of any improper, unreasonable or negligent act or omission on the part of any representative, or costs that, in the light of any such act or omission occurring after they were incurred, the tribunal considers it unreasonable for that party to pay.

In this situation the tribunal may very well order the lawyer from 'Rent-a-brief' to reimburse the wasted costs incurred by Sandra as a result of his conduct.

Scenario four

Sandra's actions: It transpires through evidence during the tribunal hearing that Sandra was not dismissed after all. She had decided to leave her waiting job purely because she did not earn enough and at the time had planned to move to America to follow her dreams of being an actress. Sandra admits that it was her plan to bring a claim against Tony to earn a bit of cash for her proposed trip abroad and that Tony had done nothing wrong. Sandra apologises to the tribunal for wasting everyone's time.

The likely outcome: If Tony has a legal representative, the tribunal will consider ordering Sandra to pay some of his legal costs, if it considers that she has acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing or conducting of proceedings, or if the bringing or conducting of proceedings by Sandra has been misconceived. If Tony is unrepresented, the tribunal may consider making a 'preparation time order' in respect of the time that Tony has spent on preparation for the case. When considering how much to award, it will assess what it considers to be a reasonable amount of preparatory time for the case, and then apply an hourly rate of £25, up to a maximum of £10,000.

Next week's article will provide of a glossary of the tribunal terms with which employers should familiarise themselves.

Rachael Wright, senior associate at Osborne Clarke (rachael.wright@osborneclarke.com)

Further information on Osborne Clarke can be accessed at www.osborneclarke.com