Last month, the latest ET (Constitution and Rules of Procedure) Regulations 2013 amendment regulations were laid before Parliament. They contain a variety of amendments to the Employment Tribunal rules, some more far-reaching than others. The changes to the early conciliation rules come into force on 1st December; everything else came into force on 8th October.
1. Regulation 8 – panel of members for tribunals
Regulation 8 has been amended to allow for judges from other tribunal and court jurisdictions to sit as employment judges. The scope of this is wide: any judge from a deputy district judge to the Lord Chief Justice can be allocated to sit in the Employment Tribunal provided the relevant consent procedures are followed. The government has had the ability to make this change for some time: see section 5D of the Employment Tribunals Act 1996, inserted by the Tribunals, Courts and Enforcement Act 2007. It is not clear why it is being introduced now, and it is even less clear how often it will be used. Practitioners will be reassured however that under regulation 8(2C)(b), the relevant President of the Employment Tribunal must consent to the judge in question “acting in a particular case”.
2. Appointment of Legal Officers
Regulation 10A and 10B have been introduced to permit the appointment of “legal officers” to determine certain types of applications. The power to do this has existed since section 4(6B) was inserted into the Employment Tribunals Act 1996 by the Employment Rights (Dispute Resolution) Act 1998. Legal officers once appointed may deal with the matters listed in regulation 10B(3), but only once the Senior President of Tribunals has authorised this in a practice direction; none has yet been published so it remains to be seen whether the powers of legal officers will match the regulations.
The matters they can deal with are all case-management matters, and often only where the parties can consent. But some have potentially significant consequences, for example an application to extend time for filing a response, for additional information about a claim or defence, or for claims to be considered together. These matters are often contested and not straightforward to determine. There is an unfettered right under regulation 10A(2) to apply within 14 days for a fresh determination by an Employment Judge; it must be assumed that the unsuccessful party would make such an application.
The introduction of legal officers to deal with uncontested case-management matters is to be welcomed, but caution should be exercised before allowing them to determine disputed issues.
3. Claims and Responses
Under the old rule 9, multiple claimants could only present their claims in the same claim form if they “are based on the same set of facts”; this has been extended to if they “give rise to common or related issues of fact or law or if it is otherwise reasonable for their claims to be made on the same claim form.” A similar amendment has been made to rule 16 to allow similar flexibility to respondents.
This will allow greater flexibilities to parties when there are multiple claims against the same respondent. It is likely to ease the administrative burden on solicitors involved in group litigation in the employment tribunal, for example in equal pay claims, but other than that it is unlikely to have much of an impact on tribunal practice.
4. Early conciliation – wrong EC number
Through a combination of new rules 12(1)(da) and 12(2ZA), Employment Judges now have the specific power to allow a claim to proceed if the claimant made an error in relation to an early conciliation number and it would not be in the interests of justice to reject the claim. This is a welcomed amendment which will help to remedy the sometimes draconian nature of the EC rules.
5. Early conciliation – no more minor errors in relation to name or address
Hitherto, under rule 12(2A), if the name of the claimant and respondent on the ET1 did not match the names on the relevant EC certificate, Employment Judges only had the power to overlook that error if they were satisfied that the claimant made a “minor error” in relation to a name or address, and it was also not in the interests of justice to reject the claim. This inevitably led to parties having costly and frustrating arguments about the meaning of “minor”. This rule has now been wisely amended to remove the word “minor”, which will make it easier for claims to be determined with on their substance, as they should be, rather than on technical procedural points.
6. reconsideration of rejection
Rule 19 has been amended so that the Employment Judge who reconsiders an application to reconsider a rejection of a response under rule 17 or 18 does not have to be the same judge who made the original rejection. This mirrors the existing position under rule 13 for rejection of claims.
7. Judgment after determining preliminary issue
Rule 21 deals with what happens when a response has not been presented or has been rejected, or when the respondent confirms they do not wish to challenge the claim. Rule 21(2) has been amended to provide that in these circumstances, if the Judge directs a hearing on a preliminary issue, they can issue a final judgment after that issue has been determined without need for a further hearing.
8. Initial consideration
Rules 26, 54 and 58 have been amended to allow the Tribunal to list a final hearing in a claim on receipt of the claim form, before the response has been received. The explanatory notes suggest that this will only be used in what the tribunal classifies as short-track cases. Given the current waiting lists in many tribunals, this is likely to have the effect of shortening the waiting times in more simple cases.
9. Remote hearings
Rules 44 and 46 have been amended to allow greater flexibility in remote hearings. Witness statements in public remote hearings may now be inspected by members of the public “otherwise than during the course of a hearing”(rule 44). Rule 46 has been amended so that in hearings conducted by use of electronic communication, parties and members of the public attending the hearing must be able to hear what the Tribunal hears and see any witness as seen by the Tribunal “so far as practicable”. This obviously has the intention of permitting remote hearings to proceed when technical gremlins make it impossible for everyone attending to see and hear what the tribunal sees. However, it is worth noting that the “practicable” standard in law usually sets a very high bar, higher even than the “reasonably practicable” standard used in the context of unfair dismissal time limits.
10. Withdrawn claims and the Register
Rule 67 has been amended to provide that claims which are withdrawn under rule 52 do not need to be entered onto the Register. This is apparently a step taken to ease the administrative burden on the Tribunal.
11. Six weeks for early conciliation
The Schedule to the Early Conciliation Regulations has been amended in two respects. Firstly, the standard duration for early conciliation is now six weeks rather than one month, but early conciliation officers can no longer extend the early conciliation period. It would be interesting to know what impact if any this has on the settlement rate during early conciliation. Secondly, rule 2 has been amended to provide for the correction of errors on the early conciliation form.
12. Concluding thoughts
These amendment regulations introduce a hotchpotch of changes, and it is difficult to see any unifying principle or thought behind them. This does however present an opportunity to pause and consider in what other ways the rules might be strengthened.
Two points spring to mind. Firstly, the Civil Procedure Rules have recently been amended so that witness statements have to contain an explanation of how they were taken. There are strong arguments for introducing this for statements in the tribunal. Secondly, as the disclosure process, particularly in large cases, becomes increasingly complicated and technical, the absence of any detailed treatment of disclosure in the Tribunal’s procedure rules looks to be increasingly unsustainable, with judges and parties in individual cases being left to draw on the CPR.
The amendment regulations can be found here.
This article has been written by Andrew Watson, a tenant of 12KBW and a member of the blog’s editorial board.
employment & discrimination 