Tribunal reform: questions and answers

Rachael Wright, Associate in the Employment, Pensions and Incentives Department at Osborne Clarke Solicitors, answers questions on the new employment tribunal rules of procedure, which come into effect on 1 October 2004.

Why is employment tribunal procedure undergoing reform?

The Employment Tribunal Rules of Procedure have been rewritten so that they follow a logical structure and are expressed in plain English. The new rules implement some of the recommendations of the Employment Tribunal Systems Taskforce, which was set up to recommend how services could be made more efficient and cost effective for users of the employment tribunal system. The new rules are also intended to dovetail with the new dispute resolution measures, which encourage resolution of disputes within the workplace without recourse to litigation by preventing certain categories of complaint being taken to tribunal unless the employee has first raised a grievance in writing and waited at least 28 days. The new tribunal rules reflect this.

What is the new procedure for bringing a claim?

The applicant, who, under the new rules is called the claimant, must fill out a new form called a claim form. The claim form requires additional information to that currently required by the IT1 form, for example about the value of the claim, whether the claimant has found another job, and whether, in some circumstances, he or she has lodged a grievance with the employer before applying to the tribunal. It is not necessary for a claimant to use the prescribed claim form until 6 April 2005, but from 1 October 2004 he or she must supply the mandatory information.

What is the new procedure for responding to a claim?

Under the current tribunal rules, a respondent has 21 days in which to respond to a claim. The new rules have extended the time that a respondent has to do so: under the new rules the response must reach the tribunal within 28 days of the date on which the respondent was sent a copy of the claim. However, there are more limited circumstances in which the respondent may request an extension of the 28-day time limit. It must make the application for an extension within the original 28-day time limit and an extension will be granted only if the tribunal chair is satisfied that it is 'just and equitable' in the circumstances.

Under the new rules the time limit will start to run from the date on which the respondent was sent a copy of the claim rather than the date on which it received it.

A new prescribed response form must be used from 6 April 2005.

Under the new rules a tribunal has the ability to screen claims and responses before they are accepted.What will this mean in practice?

A claim or response will not be accepted where:

What will happen if the tribunal does not accept an employer's response?

Where an employer's response is not accepted for one of the reasons outlined above, or no response is received from the employer, the tribunal chair may deliver a default judgment without hearing the employer's evidence. The respondent has 14 days from when the default judgment is sent to it to apply for the decision to be reviewed. The chair may revoke or vary all or part of the default judgment but only if the respondent has a reasonable prospect of successfully responding to the claim or part of it.

It is, therefore, extremely important that the response form is submitted within the relevant time limit and contains all the required information.

What will ACAS's involvement be under the new rules?

The new rules introduce a fixed period of ACAS conciliation, beyond which conciliation will continue only at ACAS's discretion.

The standard conciliation period will be 13 weeks. However, a two-week extension may be granted in certain circumstances, namely where a serious settlement proposal is being considered and likely to be agreed within this extension.

The new rules also introduce a short conciliation period of seven weeks for some other claims, including a failure to pay a redundancy payment or wages, where it is likely that the case will be disposed of quickly.

Not all claims will be subject to a fixed period of conciliation. In equal pay, discrimination and whistleblowing cases, which are inherently more complex, ACAS will have an ongoing duty to conciliate until the case is disposed of.

(See the XpertHR Quick Reference section for more information on the three categories of claim.)

Will there be new rules about the award of costs?

Yes. It will be possible in certain circumstances for a tribunal to award costs to an unrepresented party who has been caused additional work as a result of the other side's behaviour. Such an award will be called a preparation time order. The unrepresented party will be awarded an hourly rate of £25 multiplied by the number of hours that the tribunal deems appropriate, up to a maximum of £10,000.

The tribunal will also have new powers to make an award against a party's paid representative who has caused additional work as a result of his or her inappropriate conduct. The representative will have to pay these costs personally. This will be called a wasted costs order.

Finally, the tribunal will be able to make a costs order against a party that has caused the postponement of a hearing or not complied with a tribunal direction, and will be obliged to make an order against a legally represented employer in unfair dismissal proceedings where, seven days or more before the hearing, the employer was aware that the claimant wanted reinstatement or re-engagement but it failed to supply evidence as to the availability of the claimant's old job or another suitable job, with the result that the hearing was delayed.

Next week's article will take the form of a case study highlighting the forthcoming changes in the tribunal rules.

Rachael Wright is an associate at Osborne Clarke (Rachael.Wright@osborneclarke.com)

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