New employment tribunal rules come into force on 1 October 2004. These make significant changes to the procedure for bringing and defending claims. There are two key dates to remember: On 1 October 2004 the majority of changes become operative. On 5 April 2005 new forms ET1 and ET3 will be introduced. The key changes are set outbelow.
What happens when a claim is submitted to the Tribunal?
From 1 October 2004
1. Applicants will be referred to as Claimants.
2. Once it receives a claim the Tribunal must assess it under a pre-acceptance procedure. In essence, the Tribunal must reject the claim if:
(a) the Claimant has not provided all the information required on the ET1 form;
(b) the Tribunal does not have the power to consider the claim (or part of it) e.g. because the claim has been lodged out of time or the subject matter of the claim is not within the Tribunal’s jurisdiction;
(c) the claim has been presented to the Tribunal in breach of the requirement on the Claimant to have first served a grievance on the employer.
3. A Claimant can ask for the decision not to accept the claim to be reviewed by a Tribunal Chairman.
4. If a case is accepted, the Tribunal will set a time limit for settling the case through ACAS. Most cases will be given seven weeks for conciliation but more complex claims, for example, those involving discrimination, will be given thirteen weeks. Employers need to act fast if they want to pursue settlement by this means. It is possible to apply for an extension of time but the Tribunal’s agreement cannot be relied upon. Extensions might be granted, for example, where the deal is almost done.
From 5 April 2005
5. The Tribunal must also reject the claim if it is not on the new form ET1.
What happens when you submit your ET3?
From 1 October 2004
6. The time limit to respond to the claim will increase from 21 to 28 days.
7. The ET3 will also be subject to a pre-acceptance procedure. It will be rejected if:
(a) the Respondent has not provided all the information required on the ET1 form
(b) it has not been presented within the relevant time limit
8. If the response to a claim is rejected under the pre-acceptance procedure a default judgement may be issued, without a hearing. The default judgement can determine liability and a remedy for the Claimant. A Respondent can ask for the default judgement to be reviewed by a Tribunal Chairman, but it is not advisable to ignore protocol and seek to rely on this to enable you to defend a claim.
From 5 April 2005
9. The Tribunal must also reject the response if it is not on the new form ET1.
Hearings
From 1 October 2004 there will be four types of Tribunal hearing:
10. Case management discussion – a private discussion between the Chairman and the parties to agree issues such as timetables, disclosure, witness orders etc.
11. A pre-hearing review – streamlining the various types of pre-trial hearing available under the old rule
12. The hearing or trial
13. A review hearing
There is no mandatory requirement to hold either a case management discussion or a pre-hearing review and all of the above are optional at the discretion of the Chairman except the liability and remedies hearing.
Tribunals have been piloting telephone case management conferences. The new Rules endorse case management conferences and preliminary hearings taking place by telephone, video link or any other electronic communications media where the Chairman considers it to be just and equitable. Any liability and remedies hearings must still be heard in public at one of the Tribunal offices.
Tribunals may now make orders for a deposit of up to £500 (payable by a Claimant as a condition of continuing to pursue the claim where the Tribunal considers there is no reasonable prospect of a claim succeeding) at a case management discussion as well as at a pre-hearing review. The Tribunal can also order that the case or the defence be struck out at either such hearing but only if notice of an intention to strike out the case has been given previously to all the parties. If notice has not been given the hearing will be adjourned until it has.
Costs
14. Further extensions have been made to the Tribunals’ jurisdiction to award of costs. Currently cost orders can be made:
* where the proceedings have been postponed or adjourned at the request of a party, depending on the circumstances of the request;
* where a party in bringing the proceedings, or a party or party’s representative in conducting the proceedings, has acted vexatiously, abusively, disruptively or otherwise unreasonably (Note: Hosie and Others v North Ayrshire Leisure Ltd [2003] EAT 21/10/2003 – a party’s representative can only suffer a costs penalty for the conduct of the case, not for the decision to bring the case.);
* where a party, in bringing or conducting the proceedings, has been misconceived;
* where a party has been ordered to pay a deposit at a pre-hearing review and then goes on to lose the case;
From 1 October 2004 the following costs orders may also be made:
* where a Claimant has claimed reinstatement or re-engagement and the employer has failed to produce evidence of the post available within the required timescale;
* where a Claimant is not legally represented a Preparation Time Order may be made. These are available in substantially the same circumstances as a costs order and can be claimed for preparatory work or advisers costs directly relating to the conduct of the proceedings. In the first year of the new Rules the maximum hourly rate to be applied is £25 but this will rise by £1 in each successive year. The upper limit for a preparation time order is £10,000. This new provision will be of particular interest to those trade unions that represent their members in the tribunal which have hitherto been unable to claim costs.
* where costs are “wasted”. Costs may be wasted if they have been incurred as a result of a representative’s “improper, unreasonable or negligent act or omission” and the Tribunal considers it unreasonable for a party to pay them. Wasted costs orders can include an order that the representative repay sums to his own client, that he pays the Secretary of State allowances such as witness expenses or that he repay to any of the other parties certain costs. Before making a wasted costs order the Tribunal must give the offending party the opportunity to make oral or written representations.
The Tribunal Register
Until 1 October 2004 all applications and judgements were entered into a register that was available for public inspection. From 1 October 2004 only judgements will be entered. Until a case is actually heard, therefore, it may only become public if one of the parties seeks publicity. Respondents used to use the register to determine whether someone was a serial claimant and possibly a vexatious litigant. This won’t be possible any longer.
Conclusion
The new rules entail a more proactive approach by Tribunals to case management. The prime motivator is for a more streamlined service, cutting down on the number of cases which get to a full hearing or settle at the tribunal door. This reflects the increasing burden on the tribunal system from the ever growing number of claims. The new rules suggest a less lenient and a less flexible approach. This cuts both ways. Employers should be very cautious about ignoring procedural requirements. The longer time limit suggests that applications for time extensions may not be so readily granted and HR managers must act quickly when they receive applications so all the information is ready on time. On the whole, if they work, the changes will be a benefit to the organised employer who no longer views tribunal litigation less seriously than High and County court claims.
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