New Employment Tribunal Rules of Procedure: background
In November 2011, the Government invited Mr Justice Underhill to undertake an independent review of the Employment Tribunal Rules of Procedure, to make the Rules simpler and to ensure efficient, proportionate and consistent management of claims. Mr Justice Underhill presented his recommendations to Ministers in July 2012, which led to the publication of revised draft Rules. Further consultation was then carried out and now the Government has published its response.
The new Rules will come into force in the summer
The new Rules had been expected to come into force next month. However, they will now come into force in the summer, alongside changes required to introduce fees and the Underhill recommendations in the Enterprise and Regulatory Reform Bill (“ERRB”) into the Employment Tribunal.
Why the delay?
Stakeholders’ dissatisfaction with the existing Rules stemmed from piecemeal changes that meant the Rules were no longer working in the most effective and efficient way possible; this influenced the Government’s decision to make all of the changes (new Rules, introduction of fees, ERRB changes) at the same time to enable users to familiarise themselves with just one set of new Rules, rather than issuing a series of versions.
What can we expect from the new Rules?
The new Rules are not yet available but we are told that they will be issued by May 2013. The Government’s consultation response does provide an indication as to how they will look, however.
It appears that most, if not all, of Mr Justice Underhill’s recommendations have been taken up, including:
• An initial sift stage – every case will be reviewed on paper by an Employment Judge to weed out weak cases at the earliest opportunity.
• Tribunals will be able to limit oral evidence and submissions at hearing.
• The £20,000 cap on costs assessed by Tribunals will be removed.
• The new Rules will be supplemented by Presidential guidance, to aid understanding and consistency of approach.
• It will be easier for claims to be withdrawn and dismissed.
• A new “preliminary hearing” will combine and replace current pre-hearing reviews and case management discussions.
The Employment Law Review
The introduction of the new Rules is part of the most comprehensive review of employment law for a decade – the (inventively named) “Employment Law Review”. The Government’s vision is to achieve a flexible, effective and fair labour market that secures basic employee rights and benefits without excessive regulation. The Government is now half-way through the Employment Law Review, and the published response provides a report on progress.
The Government’s response includes a useful diagrammatic timeline (at page 18) showing the progress made so far and forthcoming reforms over the next couple of years. The key aspects of the forthcoming changes are summarised below:
• Changes to collective redundancy (to be accompanied by an Acas guide) – the consultation period for redundancies involving 100 or more employees is to be halved from 90 to 45 days, in April 2013.
• New 12 months’ pay cap on unfair dismissal compensatory awards – the unfair dismissal compensatory award will be capped at the lower of one year’s pay and the existing limit of £74,200.
• New Tribunal fees – those submitting a claim to a Tribunal or an appeal to the EAT will need to pay an initial issue fee, followed by a subsequent hearing fee. It is thought this will encourage people to think more carefully about alternatives to bringing a claim in the Tribunal.
• New Employment Tribunal Rules of Procedure come into force – it is hoped the changes will make Tribunals easier to understand by all, more efficient and will sift out weak claims at the earliest possible opportunity.
• Whistleblowing changes – most notably the introduction of vicarious liability and the “public interest” test.
• New employee shareholder status – employees will be able to obtain shares in their employer’s business in return for giving up some of their employment rights. Employee shareholders will be exempt from capital gains tax on the disposal of the first £50,000 worth of shares (valued at acquisition).
• TUPE Regulation reforms – from October 2013, the Government intends to implement the changes resulting from its current consultation (which closes on 11 April 2013). The Government is proposing to remove gold-plating to give businesses greater flexibility, while ensuring protection is retained for affected employees.
• Right to request flexible working for all employees – flexible working patterns are increasingly important in today’s society and will become available to all employees with 26 weeks’ service, rather than only parents or carers.
• Acas Early Conciliation – a mandatory process is being introduced to encourage employees and employers to discuss problems before their relationship irrevocably breaks down, and to help people work through their disagreements themselves so as to avoid the Tribunal.
• Introduction of Employment Tribunal penalties for employers who lose Tribunal claims.
• Introduction of Shared Parental Leave – to provide greater choice in how childcare is managed within families, giving both parents the opportunity to work.