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Government reforms: (2) Tribunal rules and fees

Employment Tribunal feesOn 29 July 2013 Employment Tribunal fees and new rules governing Employment Tribunal practice and procedure will be introduced. We set out the impact of these new features in detail in our May newsletter, Government Reforms: Finalised and Tribunal Fees: They’re nearly here…

Tribunal fees

From the above date all those bringing Tribunal claims and EAT appeals will be liable to pay a fee (or provide an application for a reduction against that fee). However, if UNISON has its way, Tribunal fees will never see the light of day. The union is challenging the decision to bring in fees and is calling for a Judicial Review. Dave Prentis, General Secretary of UNISON, has commented that “it is completely wrong for access to the law and employment justice to be based on what you can or cannot afford”.

As a quick reminder, if (and probably when!) it goes ahead, there will be two levels of claim:

Whether a claim attracts type A or B fees will depend on the type of claim. Type A claims include unlawful deduction from wages, holiday pay, and redundancy payment claims. Type B claims include discrimination, equal pay and unfair dismissal claims (i.e. those that are likely to be more complex and take more time to determine). There is a separate fee structure for multiple claims (i.e. claims submitted jointly by more than one claimant).

There are several other fees too. For example, £60 for an application by an employer to dismiss a claim following settlement and £600 for judicial mediation.

The new Tribunal rules

The new rules, available here, were published on 3 June and will apply (with very limited exceptions) to all ongoing and new Tribunal and EAT cases from 29 July 2013, as long as the Respondent receives a copy of the claim form from the Tribunal on or after that date.

The new rules include:

Sanctions for non-payment of Tribunal fees: a claim form will be rejected if it is not accompanied by the relevant fee or an application for a reduction against that fee. In the case of an overdue hearing fee, the Tribunal will send a notice specifying a new date for payment of the fee. If by that date the fee remains outstanding, and no application has been made for a reduction against that fee, then the claim will be automatically dismissed. However, even in these circumstances a claimant can apply for the claim to be reinstated if he or she pays the relevant fee within a certain timescale. Whether the claim is reinstated will be determined by an Employment Judge.

An initial sift stage: at which every case will be reviewed on paper by an Employment Judge to consider prospects and case management. This already happens for most purposes, but, hopefully, the express requirement in the rules to check for weak claims will focus the minds of Judges carrying out the sift, encouraging more robust case management and a more effective use of the sift process;

Removal of the £20,000 cap on costs that can be awarded by a Tribunal and more flexibility in making deposit orders: Tribunals will be allowed to carry out detailed costs assessments for costs awards above £20,000 without having to refer such to the County Court. Tribunals may also make a deposit order as a condition of pursuing a particular allegation or argument and need not make the pursuit of the entire complaint or response conditional on the deposit being paid.

Rule to permit Tribunals to limit oral witness evidence and representatives’ submissions at hearings: This already happens at most Tribunal centres in any event, but this practice is likely to become more widespread with the express endorsement of this practice in the new rules;

Non-prescriptive guidance from the Presidents of Employment Tribunals: to supplement the new rules, aid consistency of approach and help parties to understand what is expected of them;

Less rigid approach to applications to extend time to respond to a claim: the new rules expressly allow employers to ask for an extension to the 28-day time limit for responding to a claim even after the time limit has expired.

Shorter time limit for employer counter claims: the new rules reduce this time limit to 28 days and make it clear that any such counter-claim must be set out in the response to the claim. Any counter-claim will attract a Tribunal fee of £160.

Claimant’s withdrawal of claim leads to its automatic dismissal: This is good news for employers, as the new rules on Tribunal fees introduces a compulsory fee for respondents applying to dismiss a withdrawn claim. Given the automatic dismissal rule, the requirement for payment of a fee should not arise often. However, automatic dismissal won’t apply if the claimant says they want to reserve the right to bring a new claim in the future and the Tribunal is satisfied there would be a legitimate reason for bringing a new claim or believes dismissal would not be in the interests of justice.

Reconsidering judgments: the rules set out a new procedure (replacing the current one) under which any decision of the Tribunal can be “reconsidered”, either on the Tribunal’s own initiative or on the application of a party.

Parties’ co-operation: the rules make it clear that parties are expected to co-operate generally with each other and the Tribunal. There is also a new requirement to copy in all other parties on any correspondence with the Tribunal.

Changes in terminology: “preliminary hearings” will take the place of pre-hearing reviews (PHRs) and case management discussions (CMDs). Apparently unrepresented parties often became confused between the two types and therefore such confusion has now hopefully been removed.

Mediation and settlement: the new rules provide that Tribunals shall, wherever practicable and appropriate, encourage and facilitate the use by the parties of ACAS, judicial or other mediation, or other means of resolving their disputes by agreement.

Comment: The rules are generally in welcome plain English and so are more user friendly than the current set. These should provide a good framework to manage cases more flexibly and efficiently and speed up the litigation process, which can only be a good thing. However, of course, we will ultimately have to wait and see what impact the new rules will have in practice.

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