Oddly, I am both young enough and old enough to remember the ‘@’symbol on a typewriter being redundant. The days of calculating ‘8 apples @2d each’ were long past, and yet we remained in an age when the headmaster of my school banned me from taking typing lessons on the basis it was of ‘no possible use for a boy’. Such vision. Like many, I also remember the long endless summers – and what a summer we employment lawyers are set to have this year!
For some time, we have been told that some fundamental changes to the tribunal system will be made and that employment law will move on to ‘big school’. This, they said, would be in summer – an abstract date which is perfectly comprehensible in a land of summer hosepipe bans during flash floods (#yeh right). So when exactly is summer? Well, it has come as a great relief to find that this year it will be on 29 July. Whether summer extends beyond this (under employment law or meteorology) remains uncertain. But from the look of catchily titled The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 it looks like there could be much in store.
For those lucky enough to attend the employment tribunal breakout session at the Employment Lawyers Association conference in May, this sudden certainty may not have come as a total surprise. Here we were told by the ever helpful Shona Simon (president of Employment Tribunals (Scotland)) that both David Latham (president of Employment Tribunals (England and Wales)) and she had firmly committed to the 29 July date. But even this certainty left concern, as it was acknowledged that the regulations themselves had yet to appear (as had the guidance, which still remains with the choir invisible). In relation to tribunal fees, there has also remained a suggestion that, in England at least, the paint may still not be dry in the very premises required for those set to actually administer the scheme (though rumour has it this has been cured).
But despite the naydoers, the regulations were published at the end of May and a brand new term beckons. What will it hold? Well, for those who have not already been ‘barnetted’ (please support my bid to introduce this as a verb into the English language), or dare I suggest have even read the regulations, here are some edited highlights:Clearly, there is much to work with and the next few months are bound to bring interesting debate as parties come to terms with the new regime, not least since the guidance has yet to be produced. Although some measures may be modest or even reflect the old rules to an extent, there is much here that could be seen as shifting up a gear.
- Fees for employment tribunal and employment appeal tribunal claims are to be introduced from 29 July 2013. These are set out in a helpful table. In essence, if a claimant does not send in the fee or the remission application, the claim will be rejected (rule 11) and they will have to start again (if they are in time). Mid-stream failures to pay may lead to claims or applications being dismissed (though there is a chance to seek reinstatement). If someone applies for remission and fails they will, of course, be given a chance to pay. It is unclear if Amex will be accepted or whether the tribunals will now offer ‘claim miles’ or a business-class lounge.
- The system of automatic default judgments for those who fail to lodge their ET3 in time will be abolished, to the relief of many a newly qualified respondent representative. In a faint homage to the halcyon days of the 1980s, a respondent will now be able to apply for an extension of time to present its response, either before or after the original 28-day deadline to present a response has expired (rule 20). The tribunal will no longer automatically issue a default judgment if a response has not been received by the 28-day deadline. Instead, the employment judge must decide whether they can determine the claim from the information they have before them (or further information they can request), or whether a hearing is still required (rule 21). Although the strict rule on debarment has been relaxed, this is far from a slacker’s charter. In short, it will be for the employment judge to decide the extent to which a respondent who has not presented a response should be permitted to participate in future proceedings.
- A personal favourite is the decision to rename ‘reviews’ ‘reconsiderations’. Presumably, it is felt the word ‘review’ was too complex for us. This can now be a ‘reconsideration’ of the rejection of a claim or response (rule 13/19) or of a judgment (rule 70). Rumours that the word ‘death’ will lose its sting following its reclassification as ‘sleepy-time’ are ill-founded.
- One of the more welcome changes comes under rule 26 which, while not creating a sift process, at least provides a formal requirement for a judge to consider the documents as soon as possible after the acceptance of a response to confirm whether there are arguable complaints/defences. This rule helpfully provides that the judge shall make a case management order which may (my emphasis) deal with the listing of a preliminary, or final, hearing or even propose judicial mediation. Rule 27 allows the judge to actually dismiss a claim/response (or part of it) if they consider that the tribunal has no jurisdiction to hear it or that it has no reasonable prospect of success. In theory, this may save much tribunal time – though as always much will depend on the willingness of judges (especially beleaguered duty judges) to use such powers.
- At a preliminary hearing a tribunal will of course be able to make case management orders and consider preliminary issues (under rule 53). Preliminary hearings will usually be heard in private – unless hearing a preliminary issue.
- Rule 52 sets out the rules on withdrawals and in particular whether there will be a judgment dismissing the claim. This will be the default position unless the claimant reserved the right to bring further claim(s) at the time of withdrawing it. In that case, if the tribunal is satisfied that there is a legitimate reason for the claimant doing so, or if the tribunal believes that issuing a judgment would not be in the interests of justice, the claim will presumably remain withdrawn (rather than there being a judgment) avoiding the pithy res judicata arguments of old.
- And finally, another highlight comes under rule 45. This will allow a tribunal to impose limits on the time a party takes to present evidence, question witnesses and make submissions, and a tribunal may prevent a party going beyond the time allotted. This should prove interesting in practice, especially in a case involving unrepresented claimants and slow-speaking counsel, though hopefully in the app store version the parties will be able to purchase power-ups and time extensions as appropriate.
Whether employment law can hang up its ‘short pants’ though remains to be seen, but for now one thing seems clear – 28 July is looking distinctly like the last day of the old term so don’t forget to bring a board game to work.
Darren Clayton , Doyle Clayton