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2014: an ET odyssey

13 August 12

Employment tribunal practice and procedure is set to change, affecting nearly every stage of a case

by Jane Green

From recent Government announcements, you will have gleaned that employment tribunal practice and procedure is set for something of a step-change.

What then might the tribunal process look like in 2014, in light of the recent rules review led by Mr Justice Underhill, the Government response to the consultation on “Charging Fees in Employment Tribunals and the Employment Appeal Tribunal”, and the Enterprise and Regulatory Reform Bill now before Parliament?

When assessing the strength of a client’s case, you will need to consider whether there was a “protected conversation”, precluding the leading of evidence about what was said.

Prescribed information will then need to be submitted in the prescribed manner to Acas, to allow pre-claim conciliation. During the prescribed period, if it is clear that no settlement will be reached, or if none has been reached on expiry of the period, the conciliation officer will issue a certificate to that effect. This is required if you are to have the (revised version of the) claim form accepted.

The table of fee levels will reveal whether your claim form attracts a level 1 issue fee of £160, or a level 2 of £250. Current proposals suggest the former applying, for example, to claims relating to redundancy pay, unlawful deductions, or breach of contract. Discrimination and equal pay claims now come alongside unfair dismissal and detriment claims in attracting a fee at level 2. Where there are multiple claimants, the number in the multiple (as well as the type of claim) will dictate the fee.

If leaving it to the last day, then the earlier you can submit the claim on that day, the better, particularly if the rules proposed by Underhill are implemented. Rule 4(1) sets out that: “An act required by these Rules or by any order of a Tribunal to be done on or by a particular day must be done before 5pm on that day.” So, no more burning the midnight oil (on deadline day at least), as happened in cases such as Beasley v National Grid Electricity Transmissions (UKEAT/0626/06/DM).

A respondent will be required to submit a revised version of the response form, with a fee lodged only if a breach of contract counterclaim is being made. Even after expiry of the 28-day time limit, a respondent will be able to request an extension of time for submitting a response, providing more leeway than at present.

If the case survives an initial sift by an employment judge without a strike-out order of the claim or response being initiated, more robust case management and early directions can be expected. Preliminary hearings will replace the twofold case management discussions and pre-hearing reviews, and you will need to be alive to the possibility of presidential guidance having been handed down on matters of practice. You may also be asked if you consent to the case being dealt with by a person appointed as a “legal officer”.

Judicial mediation, and other forms of alternative dispute resolution (ADR), are explicitly encouraged via proposed new rule 2. However, the respondent having to pay a fee of £600 for it to proceed is seen as a strong disincentive to its use.

Should ADR prove unsuccessful, some four to six weeks before the hearing, the claimant will need to submit a hearing fee of £230 or £950 for level 1 or 2 claims respectively. Legal respondents to the consultation stated that this fee should only be charged after exchange of witness statements. However, this is not commonly required in Scotland, and may be another area where there is divergence of practice.

Once paid, there is no refund even if the case settles prior to the hearing dates. Low-balling offers by respondents until a hearing fee has been paid and the claimant’s intent to proceed made clear are only to be expected – as is a claimant who has paid a fee thereafter refusing to settle because the “day in court”, once paid for, might as well be had.

During the hearing, a new hazard to beware of is the guillotine, which may be used to enforce a set timetable for oral evidence or submissions (rule 50).

Should you reach the judgment stage unscathed, the good news is that, contrary to original proposals, neither side will have to pay for a written copy of the judgment. You will, however, need to meet the issue fee of £400 if appealing to the EAT (and a subsequent hearing fee of £1,200).

This can only be a brief trailer for what may lie ahead if all current proposals are implemented. But, with the prospect of devolution of currently reserved tribunals (including Employment Tribunals (Scotland)) to the Scottish Tribunals System, plus the independence referendum having been set for the autumn of 2014, perhaps some plot twists have yet to be revealed.

Jane Green, Partner, Employment, Maclay Murray & Spens LLP

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