We don't need no Regulation
Part 2 of The Employment Act introduces a fixed period of conciliation to promote timely settlement of disputes, a fast track system for the hearing of cases and other measures purportedly to modernise Employment Tribunals. It will be done not by the Act itself, but by conferring regulation making powers on the government and the President of Employment Tribunals. The devil, if any, will be in the detail of regulations, which are awaited. The fear is that regulations will deter applicants by increasing formality and the likelihood of costs awards against them, whilst doing little to reduce delays and inefficiencies in the system which have more to do with the resourcing of the Employment Tribunal Service. The power inequality between employer and employee cannot be ignored in the tribunal rules - the impact of a costs order on an employee is of an entirely different nature to one against an employer. However until we see the regulations, the scale of the intended changes is unknown.
Employment Tribunals costs and expenses
S.22 of the Employment Act extends the scope of S. 13 of the Employment Tribunals Act 1996. The Employment Tribunal Procedure Regulations may include provision for the award of costs or expenses or allowances. Allowances are those paid to and from the tribunal members and others required to attend an Employment Tribunal.
This provision also gives the Secretary of State power to authorise tribunals to make awards of costs directly against a party's representative because of the way the representative has conducted the proceedings.
An award of costs could mean that the representative may not recover his/her fees from the client, or that he/she has to pay costs incurred by the client, or costs incurred by the other party, as a result of his/her misconduct.
Costs orders are likely to be available against a paid representative which would include lawyers and employment consultants who charge for their services, however it is likely to exclude trade union representatives, Citizens Advice Bureau and legal advice centre staff and other non-profit advisers.
As a consequence of the harsh ruling in the Kovacs v Queen Mary and Westfield College [2002] EWCA Civ 352 tribunal regulations may well enable tribunals to take account of a person's ability to pay costs. In that case the Court of Appeal held that the applicant's means were irrelevant and a costs award against her of £62,000 was upheld.
Compensation for preparation time
The Employment Tribunal Procedure Regulations may include provision for authorising an Employment Tribunal to order a third party to proceedings to make a payment to any other party in respect of the time spent by that other party in preparing his/her case. It is not intended that the parties should have to prove how much time they have spent preparing for a case, but that the Tribunal should make an assessment based on guidelines to be set out in the Employment Tribunal Rules of Procedure.
This appears to be limited to employers preparing the case. It is unclear exactly who is 'preparing a case' and whether it will it cover the person representing the individual or everyone involved, for example a personnel officer, or witnesses preparing their statements.
Employment Appeal Tribunals
S. 34 of the Employment Tribunals Act 1996 is amended by S. 23 of the Employment Act to make similar provisions regarding costs against representatives as set out for S. 22. However, there is no provision in respect of allowances. There is a provision for wasted costs orders against representatives and specific provision for taxation or detailed assessment of costs.
Conciliation
S. 24 of the Act puts focus on settling cases amicably. It introduces a fixed period of conciliation during which parties can concentrate and try to find a solution to their problem on which they can both agree with the help of ACAS. The government believe that this will cut down on prolonged negotiations that do not get resolved until, sometimes, quite literally, the parties are on the steps of the Tribunal. The duration of the fixed period is yet to be determined. Extensions to the fixed period may be granted only while the conciliator considers that an imminent settlement is likely. Once the conciliation period is over, the ACAS conciliator will have the power to decide whether to continue to conciliate the case or to pass it back to the Employment Tribunal to fix a hearing date.
Power to delegate prescription forms etc
S. 25 of the Act enables the Employment Tribunals Procedure Regulations to ask the Secretary of State to prescribe a form which is required to be used to institute proceedings in a Tribunal. The clause also enables the Secretary of State to include the requirements of the form, partly in the rules and partly outside the rules. Similar powers would apply to ET3s. It is thought that the mandatory form and notice will provide more information to the tribunal, and to the other side, at an earlier stage. The clause also enables the rules to delegate to the Secretary of State the power to prescribe that certain documents (e.g. written statement of particulars of employment) accompany either form.
Determination without a hearing
S. 26 allows Employment Tribunals to permit cases to be determined without a hearing where both parties have given their consent after receiving independent advice.
Practice directions
The Act gives new powers, in S.27, for the President of the Employment Tribunals to issue practice directions to ensure a consistent approach by Tribunals throughout the country.
Pre-hearing reviews
Tribunals will have the power to strike out weak cases at the pre-hearing stage under S. 28. At present the power to strike out is limited and rarely used. The objective is to limit the number of very weak cases reaching a full hearing by confirming the tribunal's power to strike cases out at this stage in the process.
The findings of the DTI sponsored Employment Tribunal Task Force are still awaited but it has been tasked to make recommendations on how the Tribunal service can be improved and will advise on operational aspects in the course of the coming legislative changes. The task force role could be hugely influential in shaping the scope of the regulations and determining how the new powers are used.
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