Regulations to amend the 2004 Employment Tribunal Rules of Procedure have been laid before Parliament and will come into effect on 6th April 2009. These changes will be relevant to all practitioners and HR managers involved in Tribunal proceedings – take note in particular of the changes regarding making a request to extend time for filing a Response.

The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008

The latest Government consultation in July 2008 sought views on the secondary legislation needed to bring the dispute resolution reforms contained in the Employment Act 2008 into effect. The consultation also sought views on other issues to update the Employment Tribunal Rules of Procedure. The Government recently responded to that consultation and the draft regulations amending the Tribunal Rules of Procedure have been passed.

First for those who followed this consultation, it is worth noting the proposals which the Government has NOT ACCEPTED:

·        The proposal to include members of CIPD as “relevant advisors” who can sign compromise agreements was rejected due to lack of support.

·        The proposal to change the 8% fixed interest rate on unpaid Tribunal awards to a floating rate was rejected due to lack of consensus.

·        Contrary to the Government’s original intention, the proposal to allow straightforward claims (such as unlawful deduction from wages, breach of contract, redundancy pay, holiday pay and national minimum wage) to be determined without a hearing has been rejected as it was felt this would not work well in practice.

Second, proposals that were ACCEPTED following the consultation are as follows:

·        Having decided to extend the powers of Tribunals to make wider recommendations in discrimination cases, the Government has promised to develop a policy on how best to implement this decision. The new law will probably be contained in the Equality Bill, soon to be published. The new power will enable the Tribunal to recommend, in its Judgments, changes to benefit the entire workforce e.g. that the employer makes its promotion procedures fair and transparent by having a written policy or by training managers. Failure to follow the recommendation will not attract a financial penalty but will be considered in future Tribunal proceedings if relevant. The Government has also promised to develop general guidance so that parties understand and comply with their responsibilities. 

·        Working time (holiday pay) cases will be able to heard by a Judge sitting alone.

Third, the DETAIL of the changes contained in the new Regulations amending the Tribunal Rules of Procedure is as follows:

·        Extension of time to present a response – when sending a request to the Tribunal for an extension to the 28 day time limit to present a Response, a legally represented Respondent will have to send a copy of the application to the other parties to the proceedings containing certain information (such as why the application is being made and stating that any objection must be sent to the Tribunal within 7 days with a copy to all parties involved). If the Respondent is not legally represented, the Tribunal will do this instead.

·        Default Judgments – a Judge’s discretion to issue a default Judgment where the Response is filed late will be removed and so, from 6 April, the Judge must issue the Judgment unless not satisfied that there is sufficient information to do so. In this case, the Judge must issue an order giving a time limit for provision of additional information. In cases of failure to comply with this order, the Judge must order a default Judgment. No default Judgment needs to be issued if the Judge considers that the Tribunal does not have jurisdiction or if the Judge has sufficient evidence that the Respondent has not received the Claim Form.

·        Review of default Judgments – the Tribunal’s powers will be widened so that: the Judge will be able to undertake a preliminary review of the Respondent’s application for review, without the need for a hearing; if all the parties agree, the review can take place without a hearing and on paper alone; and the Judge can review the default Judgment on his own initiative where it is made due to administrative error or a party did not receive notice of the hearing or, generally in the interests of justice.

·        Respondents who are debarred – where the Tribunal orders that a Respondent can no longer take any further part in the proceedings, the Respondent will, in addition to certain existing permitted steps, be able to ask the Tribunal for written reasons for its decision.

·        Interim relief hearings – due to the inadequacy of pre-hearing reviews, there will be a new type of hearing known as an “interim hearing” to deal with orders for interim relief in claims for either dismissal for trade union membership or activities or for automatically unfair dismissal.

·        Notification of witness orders – currently the Tribunal informs all the parties of any Orders made but in future this will not apply in relation to witness orders.

·        Withdrawal of proceedings – the rules regarding dismissal of proceedings have been clarified so that from 6th April, unless the dismissal of the claim is successfully reviewed, the Claimant may not commence a further claim against the Respondent for the same, or substantially the same cause of action.

·        Automatic dismissal after Acas settlement – a Judge must dismiss a claim (or part of claim) covered by a settlement through Acas where the agreement confirms that the proceedings will, following withdrawal by the Claimant, be dismissed (provided the Claimant makes the request for withdrawal in writing and gives evidence of the settlement agreement). The dismissal of the claim must take place within 28 days of the withdrawal request by the Claimant.