Tribunal reform: the new rules
Nick Moore, Partner in the Employment, Pensions and Incentives Department at Osborne Clarke Solicitors, considers the new employment tribunal rules of procedure, which come into effect on 1 October 2004.
Introduction
Concerns have been expressed about the complexity of the current employment tribunal system, and the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, which come into force on 1 October 2004, are intended to address these concerns by introducing rules that are more user friendly and follow a more logical structure.
The parties
The new rules provide that applicants will be known as claimants. A respondent will continue to be known as such.
The forms
Proceedings will be initiated through the use of a claim form (currently an originating application). The respondent will be required to enter a response form (currently a notice of appearance).
Prescribed claim and response forms will be introduced from 1 October 2004 and their use will become mandatory from 6 April 2005.
From 1 October 2004, the parties will need to provide certain mandatory information in the claim and response forms.
Dispute resolution
Employment tribunals will have power to reject a claim where the dispute resolution admissibility conditions have not been met. These are introduced by the Employment Act 2002, section 32 and come into force on 1 October 2004. They prevent certain claims from being presented to an employment tribunal until the claimant has put his or her grievance in writing, sent it to his or her employer and waited at least 28 days. (For more information on the new statutory grievance procedures see the previous topic of the week article on the subject.)
Time limit for response
The respondent will have 28 days, from the date that the claim form is sent to it, in which to respond. Whilst a respondent can apply for an extension of time prior to the expiry of the 28 days a tribunal chair will grant such an extension only if he or she considers it just and equitable to do so.
Pre-acceptance
The tribunals secretary and the tribunal chair will have the ability to screen claims and responses.
The situations in which a response will not be accepted are where:
on or after 6 April 2005, it has not been submitted on the prescribed form;
it fails to include all mandatory relevant required information; or
it has not been submitted within the relevant time limit.
The chair may issue a default judgment where it is clear that the response does not fulfil the acceptance conditions and, in the first two cases listed above, the time limit for submitting a response has expired.
The respondent has 14 days from the default judgment being sent to it to apply for the decision to be reviewed.
A tribunal chair may revoke or vary all or part of a default judgment if the respondent has a reasonable prospect of successfully responding to the claim or part of it.
ACAS conciliation
For some claims - discrimination, equal pay and public interest disclosure claims - there will be no fixed period of conciliation, and ACAS will have an ongoing duty to conciliate until the case is disposed of.
However, in other cases, the rules of procedure introduce conciliation periods during which time ACAS will be under a duty to conciliate. A short conciliation period of seven weeks will apply to some claims, including a failure to pay wages and a failure to pay a redundancy payment. A fixed standard conciliation period of 13 weeks will apply in all other claims.
It will be possible for a tribunal chair to move a case from the seven-week to the 13-week category if he or she sees fit because of the complexity of the proceedings.
The period of conciliation runs from the date the claim form is sent to the respondent. There is provision for ACAS to extend the standard conciliation period by up to two weeks if a serious settlement proposal is under active consideration and is likely to be agreed within the two-week extension.
A case will not be listed for hearing until two weeks after the conciliation period has finished. In effect, this means that the earliest a hearing can take place will be either nine weeks or 15 weeks after the initial claim is sent to the respondent.
Case management discussions
Case management discussions will be interim hearings to address matters of procedure and management of the proceedings. The discussions will be concerned with establishing the issues and giving directions on how the case should be prepared for the hearing and progressed.
It will not be possible to strike out a claim at a case management discussion.
Pre-hearing reviews
At a pre-hearing review a tribunal chair will be able to determine interim or preliminary matters; issue an order; order a payment of a deposit if the tribunal considers that the case has no reasonable prospect of success; consider any oral or written evidence; or deal with an application for interim relief.
During a pre-hearing review, although the purpose is to determine matters of a preliminary nature, the chair will be able to make judgments or rulings that may result in the proceedings being struck out or dismissed. The tribunal will have the ability to strike out a claim or response, or any part of it, where it considers that it has no reasonable prospect of success or is scandalous or vexatious; where the conduct of the case by one of the parties or its representative has been scandalous, unreasonable or vexatious; or if the claimant or the respondent has failed to comply with an order or practice direction. It may also strike out a claim that has not been actively pursued or one for which it is no longer possible to have a fair hearing.
Costs orders
The new rules provide for costs orders where a party has been legally represented.
Costs will not, however, automatically be awarded to the winning party.
A tribunal will have to make a costs order against a legally represented respondent where, in an unfair dismissal case, a hearing has been postponed or adjourned and:
the claimant informed the respondent not less than seven days before the hearing that he or she wanted to be reinstated or re-engaged; and
the postponement or adjournment was caused by the respondent's failing, without a special reason, to provide evidence as to the availability of the job from which the claimant was dismissed, or of comparable or suitable employment.
A tribunal or chair will be able to exercise discretion to make a costs order where a hearing or a pre-hearing review has been postponed or adjourned on the application of one of the parties.
A tribunal or chair will consider making a costs order against a party that has acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the party has been misconceived.
A tribunal or chair will be able to make a costs order against a party that has not complied with an order or practice direction.
A tribunal or chair will be able to take the means of the party into account when considering whether to award costs or how much the order should be.
Preparation time orders
A tribunal will have power to make a preparation time order to compel a party to make a payment in respect of costs incurred by another party without legal representation.
The number of hours assessed in preparation time will be multiplied by an hourly rate of £25 up to a maximum total of £10,000.
The tribunal may take into account a party's means when determining whether to make a preparation time order and setting the amount.
Wasted costs
The new rules provide for orders for wasted costs against a party's paid representative where the representative has incurred costs as a result of an improper, unreasonable or negligent act or omission.
If an order is made the representative will need to meet the whole or part of any disallowed costs. There may be an order that the representative repay to his or her client any costs that have already been paid.
Conclusion
It is important that all employers involved in tribunal claims are aware of the new tribunal rules of procedure as failure to comply with them could be extremely costly.
Next week's article will answer questions on the new tribunal rules.
Nick Moore is a partner at Osborne Clarke (Nick.Moore@osborneclarke.com)
Further information on Osborne Clarke can be accessed at www.osborneclarke.com