Employment Update: Review of Employment Tribunal rules

At a time when almost every aspect of employment law is up for debate, one development that will be welcomed both by HR professionals and employment lawyers is Mr Justice Underhill's review of the Employment Tribunal rules.

In November last year, the Government asked Mr Justice Underhill, the outgoing President of the Employment Appeal Tribunal, to lead a fundamental review of Employment Tribunal rules. The aim was to streamline the Tribunal process, improve understanding and cut costs. The review, together with the draft rules (which are intended to replace the existing rules and regulations), have now been published.

The new rules have been re-drafted from scratch, in order to make them simpler and as accessible as possible. Mr Justice Underhill has made a number of recommendations:

• New sift stage - there would be an initial sift stage at which every case would be reviewed by an Employment Judge on the papers after the claim form and response have been received, with a view to considering directions and strike-out at an early stage of claims or responses which have no reasonable prospect of success. This stage should prove useful but will rely on a robust approach from Employment Judges.

• Combining CMDs and PHRs - Case Management Discussions (CMDs) and Pre-Hearing Reviews (PHRs) will be combined and relabelled ‘preliminary hearings’. Preliminary hearings would decide case management or substantive preliminary issues.
• Alternative dispute resolution (ADR) – the review acknowledges that encouraging parties to settle, where possible, and to take advantage of the various forms of ADR, is a matter of culture as much as of rules. The culture will be reinforced by express reference in the new rules.
• Timetabling hearings - Tribunals would be able to set timetables to limit oral evidence and submissions. This will be a useful tool but may need to be exercised with caution in relation to unrepresented claimants, who may struggle to present their case within the allocated time and might attempt to appeal a tribunal decision on this basis.

• Costs - Mr Justice Underhill has proposed the removal of the £20,000 cap on the Tribunal’s ability to assess costs. This will avoid the need to refer costs to the County Court for assessment.

• Guidance - the draft rules provide for the Presidents of the Employment Tribunals to issue accessible guidance on matters of practice. This is intended to give parties an idea of what to expect during the Tribunal process.

• Claim and response forms – the current prescribed claim and response forms have also been redrafted as part of the review but have not yet been published.

A formal consultation on the review will follow later this year, so it remains to be seen whether the proposals will improve the Tribunal process over the long-term.

Tribunal fees from 2013 - published today

Hot on the heels of the review of Employment Tribunal procedure is the Ministry of Justice's response to the consultation on Employment Tribunal fees, which has been published today.

The Ministry of Justice launched a consultation on the proposal to charge fees for bringing an Employment Tribunal claim in December 2011. The amended fee structure is due to be introduced from summer 2013 and the Ministry of Justice has stated that they will be tailored to encourage businesses and workers to mediate or settle a dispute rather than go to a full hearing. The intention is to encourage people to look for alternatives, such as mediation, so that Tribunals remain a last resort for the most complex cases.

The headline proposals are as follows:

• Level 1 claims – Level 1 claims are described as claims "generally for sums due on termination of employment e.g. unpaid wages, payment in lieu of notice, redundancy payments". The issue fee for such claims will be £160; the hearing fee will be £230.

• Level 2 claims – Level 2 claims include those relating to unfair dismissal, discrimination, equal pay and whistleblowing. The issue fee for such claims will be £250; the hearing fee will be £950.

• Multiple claims – the issue fees and hearing fees will be higher, depending on the number of claimants in the multiple claim. For example, for Level 1 claims, the issue fee for 2-10 claimants will be £320 (twice the single fee).

• Other fees – other fees will apply to specific applications. For example, for an application for review in relation to a Level 1 claim, the fee would be £100.

• Employment Appeal Tribunal – the proposed fee for an appeal is £400; the proposed fee for the hearing is £1,200.

Many people on low incomes may not be required to pay the full fees, under the same remission system which already exists for court users who pay fees to use the civil courts' services. The Government has also stated that it is committed to reviewing the fee structure once implemented to assess its impact in order to consider if changes are needed.

For further information or tailored advice please contact your usual Fieldfisher adviser or one of our Employment, pensions and incentives partners, Richard Kenyon.