There’s been a lot of talk over the last year or so about the changes to be made to the employment tribunal rules 2013. The Government has now published the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, which came into force on 29 July 2013.
We think that it’s important that both employers are employees are aware of the changes that will take place and how it may affect them when they attempt to resolve disputes.
First of all, it’s clear that the new system places even more emphasis on the role of ACAS in the employment tribunal system. In all of the measures being introduced by this legislation, the primary goal is to reduce the number of tribunal claims that are raised each year. ACAS remains an important body within the dispute resolution process, and we expect its Codes of Practice to play an even bigger part in influencing best practice in HR.
Of course, the new fee system (brought in through the Employment Appeal Tribunal Fees Order 2013) has caused great debate for HR, trade unions and employers. Some argue that the fees will reduce the number of vexatious claims while others worry that employees will not be able to seek redress because of the fees, even though those on benefits or low incomes should be exempt. They are:
Level 1 – Largely for simpler matters such as unpaid wages, redundancy payments and notice payments, the fees are £160 for issuing a claim and £230 if the claim goes to a hearing.
Level 2 – For unfair dismissal, discrimination, whistleblowing, etc, the fees are £250 for issuing a claim and £950 if the claim goes to a hearing.
On top of that, if the tribunal believes that an allegation or defending argument is particularly weak, it may demand a deposit of £1,000 if the employee or employer wishes to continue with the argument.
In addition to the financial obligations, there are some other interesting changes. These include:
- The tribunal system has to reject a claim if it isn’t accompanied by the appropriate fee or an application to be exempted from the fee. If the Claimant mistakenly sends payment at Level 1 when it should actually be for Level 2, they will be asked to send the balance by a specific deadline. Again, if the deadline is missed, the claim will not be allowed to proceed.
- If the appropriate party fails to send any additional payment (or submitted an application for exemption) at a later point in the process, it’s within the tribunal’s power to dismiss their claim entirely.
- The employment tribunal judge will be obliged to consider the documents relating to the claim and make a decision on whether the arguments have sufficient merit. If not, the judge will tell the parties that the case will be dismissed by a certain date unless the Claimant submits additional information that persuades the judge that the claim should continue. This will hopefully help to address employer frustrations around very poor quality claims without any grounds being allowed to proceed to a hearing.
- Having said that, the obligation to provide a reasonable argument and defence also rests with the employer. If the judge deems their response to have little prospect of success, the employer will also be required to provide additional information by a set date and will be informed of the consequences of failing to do so.
- If an employee withdraws their claim, this will normally result in the tribunal system dismissing it and the employee being prevented from raising a similar claim in the future. At the moment, the employer has to apply to the tribunal system for the claim to be dismissed.
- A good proportion of tribunal claims involve case management discussions and pre-hearing reviews to clarify certain points or to ensure that there is sufficient evidence for parts of a claim. These will be amalgamated into one preliminary hearing. If this type of hearing is held, the tribunal may at this point require the £1,000 deposit mentioned above to be made. It can also consider any preliminary issues or make a case management order (for example, to instruct one party to release information to the other party or to order the Claimant to provide further details).
- There is a new attempt to relieve some of the frustration felt around apparently contradictory decisions made by different tribunals. The Presidents of the Employment Tribunals in Scotland, Wales and England will be able to publish guidance on what the regulations describe as ‘matters of practice’ and ‘how the powers conferred by the rules may be exercised’ designed to make case management and decisions on claims more consistent.
- Another common issue with tribunals is the length of time that they take. With the new changes, the tribunal will have the power to set limits on the time that either party takes to question witnesses and present evidence or arguments.
- As you can see, the goal is to streamline the employment tribunal process by weeding out weak cases, establishing the main facts upfront, minimising delays and preventing cases from over-running its allotted days in the diary. We’ll be interested to see if the changes do indeed make a difference.
