Over the summer we have seen the publication in draft of the new tribunal rules, followed by the Government’s final proposals for employment tribunal fees. Set against this backdrop we have the annual tribunal statistics and the ACAS annual report, so it is possible to set these new ideas in the context of how the system is working at present.
Taking the new tribunal rules first, they are certainly simpler and shorter than the current version. But they will not themselves make a radical change to the way employment tribunal proceedings are conducted, with one possible exception. This is the idea of a judicial “sift”, a process which already happens in the Employment Appeal Tribunal. The draft rules envisage that this will happen once both the claim form and the response have been submitted. It will, in theory at least, offer another opportunity for claims with no hope of success to be removed from the system.
Turning to fees, we have known for some time that these are on the way. We now have much fuller information about how they will work. As from next summer, claimants who take their case to a full hearing will need to pay both an issue fee and a hearing fee, with the precise amount depending on the complexity of the claim. Fees will also be introduced for counterclaims and some applications such as a review of a default judgment. There will be a fee remission system modeled on what currently happens in the civil courts. The tribunal will have power to order respondents on the losing side to refund the fees. However, it is not clear exactly how this new provision will be worded, since the draft rules of procedure were published before the Government announced its final plans for fees.
The Ministry of Justice’s view is that the new fees are “set to encourage mediation and arbitration”. Views differ on whether this is the right way to go about it, and whether any further encouragement is necessary. The ACAS annual report shows a rise of over 30 per cent in the use of its early conciliation scheme. Further increases will surely follow once the proposals in the Enterprise and Regulatory Reform Bill for compulsory pre-issue conciliation become law. In addition, the latest tribunal statistics show claims to the employment tribunal fell 15 per cent overall compared to the previous year, with both individual and multiple claims down.