Hard(y) Law Talk: The new ET Rules - less litigation?

Annie Hayes

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Hard(y) Law Talk: The new ET Rules – less litigation?

By Annie Hayes

At law school young foundling students are taught in their first few weeks the dry subject of ‘statutory interpretation’. From these studies they glean an insight into the magic circle of judicial thinking – the literal, golden and mischief rules. These three options conspire to cause mayhem, as is the current state of play of the new ET Rules.

The literal rule as the name suggests means applying the law strictly according to the letter of the law, whilst, the golden rule requires judges to take a more robust purposive approach to the application of the law, within the spirit of the law. Yet the mischief rules seeks to allow flexibility, exceptions to the rule(s).

These three options conspire to cause mayhem, as is the current state of play of the new ET Rules.

The new ET Rules, a result of the Gaymer Report, came into operation on 1 October 2004. To be precise, the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 (“the 2004 Regulations”) have changed how Employment Tribunals operate.

Not only has the terminology and the forms changed. The overall intention is to simplify the procedures. However the 2004 Rules of Procedure contain 63 rules whereas there are only 23 in the 2001 rules. Instead of simplifying matters these new rules appear to add complexity. From October 2005 parties will have to use prescribed claim and response forms also, new pre-acceptance procedures to encourage “sifting-out” of claims and responses that should not go forward.

The most important part of these Rules for most employers is ACAS’s duty and powers to conciliate should be restricted to a quite short, fixed period except in discrimination and equal pay (and a few other exceptional) cases, such as whistle blowing cases.

In those cases conciliation will be available up to the hearing. The reason for this is to try to get employees and employers to settle “out of court” in good time wherever possible to avoid settlements at the door of the tribunal. ACAS will continue to have a duty to attempt to bring about a conciliated settlement if requested by the parties or if there is a reasonable prospect of success, however the conciliation period is very limited and ACAS will normally refuse to conciliate after this period.

The 2004 rules provide (r.22(3)) that “……. a Hearing shall not take place during the conciliation period and where the time and place of a Hearing has been fixed to take place during the conciliation period, such Hearing shall be postponed until after the end of the conciliation period”. The fixed period will be either seven or 13 weeks.

Tribunal chairmen now have power to extend the seven week period to 13 weeks and ACAS conciliation officers will be able to extend the 13 week period to 15 weeks.

Once the fixed period has ended, ACAS will no longer have a duty to conciliate. It will still have power to do so but in order to make the “early crunch point” as powerful as possible it has indicated that it will only do so in wholly exceptional circumstances or where there has been “significant delay in receipt at ACAS of the case from the Employment Tribunal Service”. In particular, ACAS has said its policy will be to decline to conciliate after the fixed period has ended if the reason for a request for it to do so is a change of heart by one of the parties, a belated offer by one of the parties or the fact that pressure of work prevented meaningful discussion before the end of the fixed period.

Finally it should be noted that the 2004 rules (r.4) specifically provide that where Employment Act 2002 s32 applies (i.e. where the complaint is about grievances) “and a chairman considers in accordance with subsection (6) of section 32 that there has been a breach of subsections (2) to (4) of that section, neither a chairman nor a tribunal shall consider the substance of the claim until such time as those subsections have been complied with.”

All of these changes come about since all Tribunal regulations have been reformed in line with the rules governing the other civil courts, the ‘Civil Procedure Rules (CPR)’.

The result is that the Tribunals must now deal with any claim by reference to the ‘overriding objective’, (rule 3 2004 Regulations) which means dealing with a case ‘justly’, ensuring that the parties are on an equal footing, saving expense and dealing with the case in ways that are proportionate, as well as ensuring that the case is dealt with expeditiously and fairly.

In order to enable Employment Tribunals to meet these objectives, ET Chairmen now have wide powers as to how the Tribunal hearing itself is run as well as wide powers to deal with the progression and conclusion of a case, including pre-hearing reviews, costs awards and the dismissal of the claim or response.

As a result of these Rules, less litigation prevails due to lawyers’ and employers’ shared fears about ET Chairmen being overly literal in their approach to these new Rules, whilst the Employment Appeal Tribunal remains mischievous.

So has this Government initiative failed? If it desired the caseload to be reduced, which it did, it has. However, what remains an issue for genuine litigators, be they Claimants or Respondent employers, is that ET Chairmen should remind themselves of the purposive rule, rather than seeking to enforce either the literal or the mischief rule.

To that end, HR practitioners need to think about … So with ET Chairmen being cautious or mischievous going to Tribunal remains as ever …. a gamble!

Dr Stephen Hardy is Senior Lecturer in Law at the University of Manchester and a Barrister specialising in Employment and EU Labour law.

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