The President of the Employment Tribunals has issued guidance (the "Guidance") on general case management in the Employment Tribunals. The Guidance covers the basic procedures to be followed in Tribunal litigation and applies from 13 March 2014. It is clearly aimed at litigants in person rather than experienced HR personnel / litigators, but does contain some helpful clarifications.
The Guidance applies to Employment Tribunals in England and Wales and is stated to apply from 13 March 2014. The aim of the Guidance is to give parties "more information on both what to expect if pursuing a case at employment tribunal, and what is expected of them, while also promoting consistent case handling by employment judges".
Although the Tribunals in England and Wales will need to have regard to this new Guidance, they will not be bound by it and they will continue to have discretion available to them as set out in the Employment Tribunal rules.
The Guidance is a very basic guide, written in plain English, which addresses: the disclosure process; preparation of bundles; preparation and exchange of witness statements; amending a claim; establishing the existence of a disability; dealing with remedy, costs and timetabling; concluding cases without a hearing; and judicial mediation. There are a number of key points to note:
- Bundles: Interestingly, the Guidance suggests that the parties should bring a copy of the hearing bundle and witness statements for the public. It has been reasonably common practice for Tribunals to direct that a copy of the witness statements be made available to the public, particularly since statements are now "taken as read". However, this is a step further and is presumably intended to ensure that Tribunal hearings are accessible to the public. This may be a relevant consideration if a party is particularly concerned about commercially sensitive information being accessible to the press.
- Witness Statements: The Guidance suggests that, although simultaneous exchange of witness statements is the norm, in some cases "it makes sense for the claimant’s witness statement to be sent first" or vice versa. Both claimants and respondents are likely to resist this strongly and insist upon simultaneous exchange. However, it may be appropriate for a respondent to ask the Tribunal to order a claimant to provide his/her witness evidence first if the claim remains unclear despite the best efforts of the parties and Tribunal.
The Guidance also suggests that parties should send their statements to the other side when they are ready, and even if the other side is not in a position to exchange. This is not how exchange operates in practice and we do not envisage that parties will adopt this approach.
- Remedy: The Guidance contains a useful section on preparing for a remedy hearing, including setting out a list of documents that should be provided, and the typical heads of loss. The Guidance also helpfully confirms that the Court of Appeal decision in Simmons v Castle applies to injury to feelings awards in the Employment Tribunals with the result that the Vento bands are increased by 10 percent with effect from 1 April 2013.
Experienced litigators and HR professionals will find nothing particularly new in the Guidance. However, it will be useful in setting expectations when dealing with litigants in person and may also be a useful starting point to educate management / junior personnel about the process.