I have just read over the new rules governing Employment Tribunals and am heartened that the panel of three will remain as now (one legally qualified judge and two lay members. This is not the case in Appeals, which will be heard by a single judge sitting alone in almost all cases.
The overriding objective of the rules are defined in Schedule 1 as Dealing with a case fairly and justly includes, so far as practicable:
(a) ensuring that the parties are on an equal footing;
(b) dealing with cases in ways which are proportionate to the complexity and importance of
(c) avoiding unnecessary formality and seeking flexibility in the proceedings;
(d) avoiding delay, so far as compatible with proper consideration of the issues; and
(e) saving expense.
The onus is not on the court however but on all parties who now have a duty “the parties and their representatives shall assist the Tribunal to further the overriding objectives.”
We knew already that the Tribunal was to, wherever practicable and appropriate, encourage the use by the parties of the services of ACAS, judicial or other mediation, or other means of resolving their disputes by agreement. It is here that things will get complex and expensive. Although the general hope is that this will not be as expensive as the current cost of litigation.
To make court life simpler, the courts will have rules and which carry penalties for irregularities and non-compliance.
Failure to comply with any provision of these Rules (except rule about time limits for submitting and responding to the court plus those around “Unless orders” and “Deposit orders”) does not of itself render void
What are the penalties for irregularities and non-compliance?
The Tribunal may “take such action as it considers just,” which may include all or any of the following—
- (a) waiving or varying the requirement;
- (b) striking out the claim or the response, in whole or in part, in accordance with rule 37;
- (c) barring or restricting a party’s participation in the proceedings;
- (d) awarding costs in accordance with rules 74 to 84.
In another incentive for employer to mediate, in deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.
Where a claimant informs the Tribunal that a claim, or part of it, is withdrawn, the claim, or part, comes to an end and may not be restarted and the determination will then be subject to any application that the respondent may make (such as a costs, preparation time or wasted costs order).
If you don’t pay the fees?
If at the date specified in a reminder notice (sent under paragraph (1) the party has not paid the
Tribunal fee and no remission application in respect of that fee has been presented—
- (a) where the Tribunal fee is payable in relation to a claim, the claim shall be dismissed
- without further order;
- (b) where the Tribunal fee is payable in relation to an employer’s contract claim, the employer’s contract claim shall be dismissed without further order;
- (c) where the Tribunal fee is payable in relation to an application, the application shall be dismissed without further order;
- (d) where the Tribunal fee is payable in relation to judicial mediation, the judicial mediation shall not take place (which has risks for the determination).
The courts have recognised that email exists and the sate of delivery rules now formally includes email: ”
- (a) if sent by post, on the day on which it would be delivered in the ordinary course of post;
- (b) if sent by means of electronic communication, on the day of transmission;
- (c) if delivered directly or personally, on the day of delivery.
Hearings by electronic communication are also allowed in whole or in part, by use of electronic communication (including by telephone) provided that the Tribunal considers that it would be just and equitable to do so and provided that the parties and members of the public attending the hearing are able to hear what the Tribunal hears and see any witness as seen by the Tribunal.
Obviously if claimants do not pay the full fee (or has made a remission application) the tribunal staff may given notice that the claim is to be corrected and eventually reject a claim. This power extends to includes where substantive defects arise such as—
(a) one which the Tribunal has no jurisdiction to consider; or
(b) in a form which cannot sensibly be responded to or is otherwise an abuse of the process.
A claimant whose claim has been rejected (in whole or in part) under rule 10 or 12 may apply for a reconsideration on the basis that either— (a) the decision to reject was wrong; or (b) the notified defect can be rectified.
A preliminary hearing is heard by a single judge at which the he may do one or more of the
- conduct a preliminary consideration of the claim with the parties and make a case management order (including an order relating to the conduct of the final hearing);
- determine any preliminary issue;
- consider whether a claim or response, or any part, should be struck out under rule 37;
- make a deposit order under rule 39;
- explore the possibility of settlement or alternative dispute resolution (including judicial
Note there may be more than one preliminary hearing in any case.
Time to appeal is 14 days following judgement and will be heard by a Judge BUT a Tribunal on its own initiative can proposes to reconsider a decision, giving the parties reasons why the decision is being reconsidered.
Vexatious or scandalous claims
At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—
(a) that it is scandalous or vexatious or has no reasonable prospect of success;
(b) that the manner in which the proceedings have been conducted by or on behalf of the
claimant or the respondent (as the case may be) has been scandalous, unreasonable or
(c) for non-compliance with any of these Rules or with an order of the Tribunal;
(d) that it has not been actively pursued;
(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).
A claim or response can not be struck out unless the party in question has been given a reasonable opportunity to make representations.
Judges to have a casting vote
Unlike the magistrate courts, on the odd occasions where a Tribunal is composed of two persons the Employment Judge has a second or casting vote.
- Judgement of and ET will be kept for six years from the date made.
- A party has just 14 days to comply with a judgment or order for the payment of an amount of money unless the the judgment, order, or any of these Rules, specifies a different date for compliance.
Other fees that apply to making a claim
Fees are determined by different legislation “the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013.”
Under the new structure, claimants will be required to pay an ‘issue fee’ when the claim is lodged and a larger ‘hearing fee’ if the claim proceeds to a hearing. These fees will vary according to the type of case, either type A or type B (see the order for a list of which claims fall into A or B)
Claimants on low incomes (see schedule) and those on qualifying benefits are not required to pay a fee.
- income support under the Social Security Contributions and Benefits Act 1992;
- working tax credit, provided that no child tax credit is being paid to the party;
- income-based jobseeker’s allowance under the Jobseekers Act 1995;
- guarantee credit under the State Pension Credit Act 2002(95); and
- income-related employment and support allowance under the Welfare Reform Act 2007(96).
Multiple claimants have higher fees (see schedule) to pay!
For Judicial Mediation a fee of £600 is payable by the respondent.
A fee of £400 is payable by an appellant following the receipt by the Employment Appeal Tribunal of a notice of appeal.
A fee of £1200 is payable by an appellant following a direction by the Employment Appeal Tribunal that a matter proceed to an oral hearing at which the appeal is to be finally disposed of.
|Reconsideration of a default judgment
|Reconsideration of a judgment following a final hearing
|Dismissal following withdrawal
|An employer’s contract claim made by way of application as part of the response to the employee’s contract claim
You can download the regulations here.
For comment on the new regulations and procedures read comments by Employment law expert Selwyn Blyth of Pinsent Masons, the law firm behind Out-Law.com here