Employment Tribunals - new rules, new times

19 July 2012

A little later than planned, and not quite the “root and branch” reform that we were initially promised, Mr Justice Underhill’s proposals (released last week) for a brand new rule book for Employment Tribunals, is nonetheless very much to be welcomed. 

The new rules are shorter, clearer and deliberately made more “accessible”, which can only be a good thing.   Some of the proposals should be non-controversial, such as the idea of combining separate case management discussions and pre-hearing reviews.  There was no real need for the distinction to remain, and combining them into one “preliminary hearing” looks like a step forward.  Removing the cap on fixed costs that can be awarded in the Tribunal (which had necessitated a separate procedure to have to be initiated before the Country Court in those rare cases where it was appropriate) will be welcomed by business.

Some ideas are particularly interesting, for example the proposal to set an actual timetable for oral evidence and submissions.  It always seemed to me to be a real waste of resources for witnesses to be giving evidence, sometimes for days on end, by simply reading through their witness statements, long after anything meaningful could be gained from such a process.  In the meantime, the judge, barristers, solicitors and the clients were all sitting around just listening.  There are also new proposals for “presidential guidance” of which there has thus far been precious little, and this may tackle the concerns about inconsistency around the various regions, which have been a bugbear for employment lawyers for some time.

A potentially exciting development is the future encouragement to mediate, which may lead to earlier settlement.  Mediation in this country has not been used as much as elsewhere (such as in the US) and business will want that changed.  In that respect, proposed new Rule 2 may mark a seminal development (it sets out the rule that Tribunals shall “wherever practicable and appropriate” encourage and facilitate the use of ACAS’ services, judicial or other mediation to resolve disputes by agreement.  This rule comes immediately after the setting out of the overriding objective right at the very beginning of the new Rule Book and could be a significant step forward in that respect.)

Some ideas may prove to be more trouble than they are worth, such as the new early paper sift which will allow claims to be struck out where there would appear to be no arguable complaint or response.  We may find that this could lead to further challenge down the line from dogged litigators.  Also most of us at one time or another in our careers have come across the apparently hopeless case that got a lot better as a result of disclosure or exchange of witness statements…

All in all, this has been a worthwhile initiative and one feels the new rules will meet with a good reception when they are introduced in the coming months.

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