Following a thorough review of the employment tribunal rules, Mr Justice Underhill has made his recommendations to the government which, if approved, would make wide-ranging changes to the current tribunal system.
He proposes a set of draft rules, intended to be more understandable by unrepresented parties, which would replace the existing Tribunal Rules and Regulations.
The recommendations include:
- requiring an early paper sift of weak cases to ensure employment judges consider and dismiss claims with no arguable complaint or response earlier in the process;
- combining separate case management discussions and prehearing reviews into ‘preliminary hearings’ to ensure there is one consideration of the claim prior to a hearing, which may aid a quicker resolution for some disputes;
- explicitly requiring tribunals to give reasons for all decisions on disputed issues, although recognising that these can be very short in appropriate cases;
- removing the £20,000 cap beyond which costs awards must be referred to the county court for assessment;
- changing the withdrawals process so that when one party ends the dispute the other does not have to signal its intention to end the claim via an application to the tribunal;
- providing for the Presidents of the Employment Tribunals in England and Wales or Scotland to publish accessible, non-prescriptive ‘presidential guidance’ to give parties a better idea of what to expect from the tribunal process;
- enabling tribunals to set timetables for oral evidence and submissions, enforced by guillotines where necessary;
- creating a new anonymity and restricted reporting orders regime to allow tribunals to better balance the principles of open justice and freedom of expression against privacy and effective justice.
Mr Justice Underhill also recommended some changes to primary legislation, which he suggested could be introduced through the Employment and Regulatory Reform Bill which is currently going through Parliament. These changes deal with:
- introducing the ability to recover the charges and expenses of lay representatives;
- giving tribunals the power to award a contribution between two respondents who have unlawfully discriminated against a claimant (following the decision of Brennan and others v Sunderland City Council); and
- introducing the ability to make deposit orders in respect of particular issues in proceedings.
Employment Relations Minister Norman Lamb welcomed the “sensible, well thought of recommendations” and indicated that the government would announce its intentions in due course. A formal consultation on the proposals will follow later this year.