Yesterday, the Employment Relations Minister, Jo Swinson, confirmed that new rules governing Employment Tribunal practice and procedure which had been expected to come into force next month, will now be delayed until “the summer”.

Although the new rules are not yet available, the Government’s consultation response indicates what the new rules will look like. In addition, a timeline setting out further employment law changes during this Parliament was published.

The new Tribunal rules: background

In November 2011, the Government invited Mr Justice Underhill, then President of the Employment Appeal Tribunal, to carry out a review of the rules of Employment Tribunal procedure to make them simpler and ensure that management of claims is flexible, efficient, proportionate and consistent. This led to the publication of revised draft rules in July 2012 (see our Hr-e brief) and further consultation, the response to which has now been published.

What will the new rules look like?

Although the new rules themselves have not yet been published, the Government response to consultation suggests that most, if not all, of the reforms put forward in the consultation document have been adopted, including:

  • An initial sift stage at which every case will be reviewed by an Employment Judge on paper to consider prospects and case management. 
  • A rule to permit Tribunals to limit oral evidence and submissions at hearings. 
  • Removal of the £20,000 cap on costs assessed by a Tribunal.
  • A more flexible regime on holding hearings in private, and making restricted reporting and anonymity orders.
  • Non-prescriptive guidance from the Presidents of Employment Tribunals in England and Wales and Scotland to supplement the new rules and aid consistency of approach.
  • Making it easier to withdraw and dismiss claims.
  • “Preliminary hearings” to combine separate pre-hearing reviews (PHRs) and case management discussions (CMDs).

Implementation of the rules and other employment law changes

The Government’s ongoing Employment Law Review has already resulted in a number of changes which affect workplace dispute resolution, including increasing the qualifying period for unfair dismissal from one to two years. A number of further changes relevant to workplace disputes, which impact on the rules, are currently before Parliament, including the introduction of fees for bringing Employment Tribunal claims. In order to avoid issuing a new set of rules, which it then needs to amend further, the Government has decided to delay the original proposed date for implementation of April 6.

The new rules should be issued shortly to allow familiarisation time before a proposed implementation in the summer.

In addition, the Government has published the following timeline for other workplace change, including:

  • Spring 2013: reduction in the 90 day collective redundancy consultation period to 45 days with accompanying Acas guidance.
  • Summer 2013: introduction of new confidential settlement negotiations with accompanying Acas Code of Practice; Tribunal fees; a new 12 months’ pay cap on the compensatory award for unfair dismissal; changes to whistleblowing; portable online DBS (formerly CRB) checks as well as commencing a review of the administrative paperwork associated with the Agency Worker Regulations.
  • Autumn 2013: introduction of the new employee owner status. The Government also aims to introduce at this point changes resulting from its current TUPE reform consultation.
  • 2014: introduction of early Acas conciliation before a claim can be lodged at an Employment Tribunal and new employer Tribunal financial penalties.

Further details are available here.

Comment

There were 186,300 Employment Tribunals cases between April 2011 and March 2012.

The Government hopes that the changes it has now confirmed will make Employment Tribunals easier to understand for these users. Certainly, the rules initially proposed by Mr Justice Underhill were half the length of the existing 2006 rules.

As to whether the new rules will achieve the Government’s aim of being more efficient and  helping to weed out weak claims, the proof of the pudding will be in the eating. The proposal for an initial sift stage, at which every case will be reviewed by an Employment Judge on the papers after the claim form and response have been received is attractive in theory. However, it will be interesting to see how robust it is in practice, as many cases involve factual disputes between the parties and, as such,  it may not be feasible for Judges to take action without hearing the evidence.

Click here for the Government response