In November 2011 the UK Government asked the former President of the Employment Appeal Tribunal, Mr Justice Underhill, to carry out a comprehensive review of the Employment Tribunals Rules of Procedure and to produce a revised procedural code to ensure that Employment Tribunal claims are dealt with as quickly and efficiently as possible.

Mr Justice Underhill’s draft revised rules of procedure have now been published and we set out below the key proposed changes:

  • It is proposed that there will be an initial sift of cases by an Employment Judge after the ET3 is lodged. This will allow for the early consideration of appropriate directions and the possible early strike out of any claim or any response which is deemed to have no reasonable prospect of success.
  • Under the current rules there are two types of preliminary hearing - Case Management Discussions (CMDs) which deal with the clarification of issues and setting case management directions, and Pre Hearing Reviews (PHRs) which address jurisdiction issues and submissions on merits ahead of a full hearing. Mr Justice Underhill’s draft rules remove the distinction between these two types of hearings and instead suggest replacing them with "Preliminary Hearings" which may deal with either case management or jurisdiction issues as appropriate.
  • Simplification of the rules surrounding the non-acceptance of a late ET3 response is also proposed. Under the current regime, an ET3 received by the Employment Tribunal outside of the specified time frame will be automatically rejected and default judgment entered. It is now proposed that where a late ET3 response is accompanied by an application to extend time the ET3 will not be rejected pending the outcome of the application.
  • It is proposed that the current cap of £20,000, beyond which costs awards currently have to be referred for assessment to the County Court, be removed and that Employment Judges be allowed to carry out full costs assessments themselves.
  • In order to provide for expeditious and effective hearings, the draft rules provide a right for Tribunals to impose limits on the amount of time that a party may take in presenting evidence, questioning witnesses or in presenting submissions and would allow a Judge to prevent the party from proceeding beyond any such allotted time.

In addition to the above revised rules, Mr Justice Underhill also made some observations about other changes which he considered would be desirable but which would require changes in primary legislation. Specifically, he suggested that the law should be amended to allow the Civil Liability (Contribution) Act 1978 to apply to discrimination claims brought in the Employment Tribunal thereby giving Tribunals the power to apportion contribution between various respondents.

Also, whilst making a deposit order will continue to be an option for an Employment Judge who considers a claim has little prospect of success, Mr Justice Underhill suggested that the wording of the governing legislation, which currently provides for a deposit to be paid as a condition of continuing "the proceedings", be amended to reflect the situation where the order is made as condition of pursuing a particular complaint arising under the complaint.

Although not part of the draft rules, Mr Justice Underhill has also produced revised versions of the ET1 and ET3 forms and these are expected to be published and considered shortly.

At present, the above remain draft proposals. However, the Department for Business, Innovation and Skills has announced that an eight week consultation on these proposals will take place later in the year. We will of course keep you posted on the outcome of this consultation.