By Tim Sheppard
The proposed changes to the Employment Tribunal Rules are reviewed by Tim Shepherd.
“The Draft Employment Tribunal Rules: An Overview of the New Provisions?”
On 11 July 2012, Mr Justice Underhill’s ‘Fundamental Review of Employment Tribunal Rules: Employment Tribunal Rules of Procedure’ (the “New Rules”) was published. The New Rules are intended to replace the Employment Tribunal Rules of Procedure set out in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Consultation on the New Rules took place between September and November 2012 and the final version is due to be published in April 2013.
The New Rules are roughly half the length of the 2004 Rules and simplified language has been used. Many of the draft New Rules are similar to their equivalent in the 2004 Rules, such that much of the content will be familiar to employment practitioners. According to Mr Justice Underhill, “changes in style do not in every instance mean a change in substance” (letter to Norman Lamb, Minister for Employment Relations, dated 29 June 2012). Where the content of the New Rules is similar to that of the 2004 Rules, it is therefore likely that existing case-law may be used as a guide to their application. There are several entirely new provisions, however, which form the focus of this article.
Draft Rule 2(Footnote 1) (and 39 (e)) provides an express mandate for Employment Tribunals to encourage and facilitate: “the use by the parties of the services of Acas, judicial or other mediation, or other means of resolving their disputes by agreement”. This power is not limited to any particular point in proceedings and therefore seems to apply at any stage in the process of a claim. It is also broad in scope, covering Alternative Dispute Resolution mechanisms and possible settlement agreements. It appears draft Rule 2 should be viewed as part of the Government’s drive to resolve workplace disputes before claims are fully litigated.
Provision is made through draft Rule 7, for the introduction of new guidance from the Presidents of the Tribunals (England and Wales, and Scotland) in relation to matters of practice and the use of the New Rules. The Draft Rule seems to be directed at a concern, expressed by some users of the Employment Tribunal system that different Judges deal with different types of hearing inconsistently. According to Mr Justice Underhill, however, any new guidance: “is not intended to be prescriptive: ultimately judges must have discretion to deal with particular cases before them” (letter of 29 June 2012, above).
The proposals for improved case management will be welcomed by the majority of employment practitioners. Draft Rules 22-25 introduce expressly for the first time in the Employment Tribunal, a process whereby claims and responses are to be reviewed following receipt. Judges will be tasked with considering what directions are required in preparation for a final hearing and also to consider early strike out, in the event that a claim or response appears to have no prospects of success.
It is also proposed to remove the distinction between Case Management Discussions (CMDs) and Pre-hearing Reviews (PHRs). At new ‘Preliminary Hearings’, Judges will be able equally to decide matters of case management and/or substantive preliminary issues, thereby doing away with the current position where substantive matters cannot be addressed at CMDs (draft Rules 39-42).
Those who appear regularly at the Employment Tribunal will perhaps have discerned a recent move towards greater control of hearing time by Tribunals, at least in certain Regions. The power to limit the amount of time taken in the presentation of evidence, cross-examination and in submissions is expressly provided for by draft Rule 50. Where a party exceeds the time prescribed, the Tribunal “may prevent the party from proceeding beyond” that point. The introduction of this explicit power is likely to lead to increased timetabling of claims by Tribunals, especially in multi-day hearings, with many witnesses.
In a further new development, the amount of costs that can be awarded by an Employment Tribunal is to be increased. It is proposed that cost awards in excess of £20,000 may be made by the Tribunal if the level of costs is then assessed by an Employment Judge (draft Rule 72(b) (ii)). In England and Wales, the power to assess costs is to be exercised in accordance with the principles applied in a detailed assessment of costs under the Civil Procedure Rules.
It is assumed that the vast majority of the New Rules will be carried forward, un-amended, into the final version of the Rules to be published in April 2013. If that is indeed the case, it will lead to a welcome streamlining and simplification of Employment Tribunal procedure. 
(Footnote 1) Reference to ‘Rule’ refers to the draft Rule in question.
By Tim Sheppard