The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001
The new Employment Tribunal rules eventually came into force on 16 July 2001 and have immediate effect in all cases regardless of when they were started.
Schedule 1: The Employment Tribunals Rules of Procedure which will apply to the majority of employment tribunal cases, is the most important of the seven schedules that together make up the new rules.
The main changes include the introduction of an "Overriding objective" into the Tribunal regulations. Since the introduction of the Civil Procedure Rules (CPR) in 1999 lawyers have become used to the concept of an overriding objective which is the yardstick against which every step in civil proceedings is judged and basically means that litigation should be proportionate to the value of the claim. The Tribunal regulations introduce an overriding objective into the rules of procedure "to enable tribunals to deal with cases justly".
Regulation 10(2) explains what dealing with a case justly means and it includes, so far as practicable:
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate to the complexity of the issues; and
(d) ensuring that it is dealt with expeditiously and fairly.
Interestingly the definition does not include the monetary value of the claim. Many employment tribunal cases particularly those involving unauthorised deductions of salary or payment for working time holiday have a very low value, but may involve complex issues. Those conducting employment tribunal cases need to be aware of the overriding objective as for the first time the regulations include a duty on parties to "assist the tribunal to further the overriding objective".
This objective may help the non legally represented applicant resist oppressive requests for particulars, documents and unnecessary preliminary hearings - tactics well loved by many employer's lawyers.
Employment Tribunals are given for the first time explicit case management powers. Previously tribunals relied on the old rule 13 which allowed them to regulate their own proceedings. Now the tribunal are given powers to "give such directions on any matter arising in connection with the proceedings as appear to the tribunal to be appropriate" (rule 4).
Failure to comply with a direction may result in an award of costs under Rule 14(1)(a) or the striking out of the whole or part of an application or notice of appearance, and, where appropriate, a Respondent being debarred from defending altogether.
Rule 7 covers Pre Hearing Reviews which enable a Tribunal to order a deposit to be paid as a condition of being allowed to continue bringing or defending the proceedings. Currently Pre Hearing Reviews are rarely used by employment tribunals, although routinely employers lawyers request them, particularly when faced with an unrepresented applicant. The maximum size of the deposit a Tribunal may order has been increased from £150 to £500 and the tribunal must take reasonable steps to ascertain the ability of a party to pay.
Rule 14 deals with costs. The rule has changed so that a claim for costs can be awarded if the Tribunal's opinion is that the case is "misconceived". And if the claim is misconceived or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, the Tribunal must consider whether to award costs, but has a complete discretion not to do so. Also the amount of costs a tribunal can order without referring to the County Court for assessment has increased to £10,000. It is important to note that for the first time the conduct of a party's representative is included.
Rule 15 sets out the Tribunals' miscellaneous powers and states:
(2) (c) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, misconceived or vexatious;
(d) subject to paragraph (3), at any stage of the proceedings, order to be struck out any originating application or notice of appearance on the grounds that the manner in which the proceedings have been conducted by or on behalf of the applicant or, as the case may be, respondent has been scandalous, unreasonable or vexatious;
Cases can also be struck out for want of prosecution. There is a change of wording from the old rules "frivolous" to the wording of the new of "misconceived" and "unreasonable". The new test of misconceived is defined in the Regulations as including "having no reasonable prospect of success" (Regulation 2 (2)).
It is arguable that this could deal with a case like Bache v Essex County Council [2000] NLJ 99 CA where a representative was barred by the employment tribunal for being disruptive. Or indeed Harmony Healthcare plc v Drewery, a case where the respondent's representative was involved in a scuffle in the employment tribunal waiting room grabbing back witness statements where the applicant's representative was slightly injured. As a result the Employment Tribunal struck out the case.
The new rules reverse the effect of the decision in Care First Partnership v Roffey [2001] IRLR 85 a case under the old rules where the Court of Appeal held that the absence of an express power to strike out if an application had no reasonable prospect of success meant that the Employment Tribunal could not strike out.
Multiple applications (IT1s) and responses (IT3s) arising out of the same facts may be presented in a single document which will save trees and administration time for representatives and the tribunal alike.
A new Rule 9 provides that in relation to unfair dismissal in connection with industrial action the tribunal has discretion to adjourn proceedings pending the outcome of civil interlocutory proceedings under section 219 TULR(C) A 1992 (protection from certain tort liabilities).
Rule 16 introduces a new paragraph dealing with media coverage which extends the circumstances in which a tribunal may make a Restricted Reporting Order to cases where evidence is likely to be heard of a personal nature. This specifically relates to claims under the DDA but does not deal with Chief Constable of West Yorkshire v A (LELR issue 49). This was a case of a transsexual seeking anonymity in proceedings, which is still a gap in the rules and may also amount to a breach of the Human Rights Act 1998.
Finally there are new provisions which allow Crown employees (including members of the security and intelligence agencies) to bring claims to employment tribunals in a similar way as other employees with certain restrictions.
Are the new rules OK? We think maybe not - for two main reasons. Firstly, they could have a deterrent effect on genuine claimants and their advisors by increasing the risk of costs. Although it is argued that the costs threat applies equally to both parties this analysis ignores the reality of the situation. Who would a costs order affect most - a dismissed worker or the company they used to work for? Secondly, by giving so much discretion to individual Tribunals, widely different practices are likely to develop from region to region and chairman to chairman. Consistency and a degree of certainty in litigation is necessary for both sides of industry and these new rules may provide the opposite. We will monitor the cases closely and update readers as they develop.