Among the changes which will be introduced by the new Tribunal Regulations (50-page / 628KB PDF)are case management powers for employment judges; an initial 'paper sift' of claims, to prevent cases where the tribunal has no jurisdiction from proceeding to a hearing; and a greater emphasis on mediation as a dispute resolution tool. The regulations also set out more details of how tribunal fees will work, including what will happen if the fee is not paid by the due date.
Employment law expert Selwyn Blyth of Pinsent Masons, the law firm behind Out-Law.com, said that taken together, the changes should reduce the number of claims raised with the tribunal service. There were 186,000 cases heard by the employment tribunals between April 2011 and March 2012, according to Government figures.
"Employment disputes usually turn on the facts of the case, and are often based on relationships between companies and their workers," he said. "If Acas, the publicly funded conciliation service, is properly resourced, these proposals could have a real impact on the number of disputes resolved through litigation, which is adversarial and can be less appropriate in these types of cases."
"Not as many people are likely to qualify for the tribunal fee remission scheme as initially suspected, as the test will now look at a combination of the worker's capital savings and income. While we still don't know what impact the introduction of fees will have in practice, this change to the test will shore up business confidence in the scheme," he said.
The changes to the procedural rules governing the Employment Tribunal and Employment Appeal Tribunal (EAT) follow a review of the tribunal system by former EAT president Mr Justice Underhill.
The new rules will see the introduction of an initial 'paper sift' stage once the claim and response have been received. A judge will review the case based on what is set out in these papers with a view to making directions or, if appropriate, considering whether a claim should be struck out due to it lacking a reasonable prospect of success. The existing case management discussion and pre-hearing review stages of a claim will be combined into one streamlined preliminary hearing, to cut the number of hearings which go before a tribunal.
Parties will have the right to present submissions in writing as to why their claim or defence should not be dismissed if it does not pass the initial sift. Selwyn Blyth said that although the change was one that would be "superficially attractive" to employers, its likely impact should not be overstated.
"Although this process will be able to prevent cases where the tribunal does not have jurisdiction, such as those where the employee does not have the required length of service to bring an unfair dismissal claim, from reaching a hearing, in many cases employment claims turn on their facts and require real evidence to be heard," he said.
"The EAT already operates a 'sift' process, and has done so for a number of years. To a certain extent, it has been successful at 'weeding out' less meritorious claims," he said.
A draft order setting out the fees payable to bring an employment tribunal or EAT claim was published last month. Under the new structure, claimants will be required to pay an 'issue fee' when the claim is lodged and a larger 'hearing fee' if the claim proceeds to a hearing. These fees will vary according to the type of case, and flat fees will apply to EAT cases. Additional fees will apply to certain subsidiary applications, such as an application to set aside a default judgment or to issue a counter-claim.
Under the new regulations, a tribunal will reject a claim form if it is not accompanied by the correct issue fee or an application for fee remission. If the hearing fee is not paid by the due date as set out in the hearing notice, the tribunal will write to the claimant giving a deadline by which payment must be made or the claim dismissed without further order. The tribunal has the power to reinstate the claim if the fee is paid after the deadline has passed at its discretion.